Lakshmi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 6TH DAY OF JANUARY 2016/16TH POUSHA, 1937** ## **CRL.A.No. 945 of 2004 ( )** **--------------------------** **AGAINST THE JUDGMENT IN SC 141/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR DATED 27-05-2004** **-----------------** **APPELLANT(S)/ACCUSED:: ----------------------------------------** **LAKSHMI, W/O. NARAYANAN, THENDANKAVIL VEETTIL, PARUTHIPARA DESOM ELANAD VILLAGE, TALAPPILLY TALUK.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT(S)/COMPLAINANT::** **--------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **P.D. RAJAN, J. ------------------------------Crl.Appeal No.945 of 2004 ---------------------------------------------Dated this the 6[th] of January 2016** ## **JUDGMENT** This appeal is directed against the conviction and sentence in S.C.141/04 of the Additional Sessions Judge-III (Adhoc-1), Thrissur under Section 58 of the Abkari Act. The charge against the accused was that on 24.03.2000 at 12.30 pm, she was found in possession of 2 litres of arrack in front of the house of one Sundaran on the Panchayat Road Paruthipra desom in Elanadu Village by the Excise Inspector, Pazhayannur. She was arrested and the contraband articles were seized. Reaching at the Excise Office they registered a crime and after completing investigation, laid charge before Judicial First Class Magistrate, Wadakkancherry under Section 8(1) and (2) of the Abkari Act, from there, the case was committed to Sessions Court, Thrissur. 2. On the side of prosecution, 5 witnesses were examined and Ext.P1 to P12 were marked as documentary ## **Crl.Appeal No.945 of 2004 2** evidence. The jerry can was marked as MO1. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She did not adduce any defence evidence. The Learned Additional Sessions Judge convicted the accused under Section 58 of the Abkari Act and sentenced to imprisonment for one year and fine of Rs.1 lakh with a default sentence of rigorous imprisonment for 3 months. Being aggrieved by that Judgment she approached this court with this appeal. 3. The learned counsel appearing for the appellant contended that no forwarding note was produced for sending the seized articles for chemical examination. This procedural irregularity create a doubt in the credibility of the prosecution case, whether the same sample was forwarded to the chemical examiner’s lab for examination. He relied the decision reported in **Ravi V. State of Kerala 2011 (3) KLT 353.** 4. I heard the learned Public Prosecutor also. He contended that a presumption under Section 293 Cr.P.C. is ## **Crl.Appeal No.945 of 2004 3** possible when a report is received from the chemical examiner's laboratory. Prosecution examined PW1 as occurrence witness. His evidence shows that on 24.03.2000 while he was working as Excise Preventive Officer, Excise Range Office, Pazhayannur, he conducted patrol duty at 12.30 pm. When he reached at the place of occurrence, appellant was found on the side of the road with MO1. On seeing the excise party, she became perplexed, in the presence of independent witness PW1 inspected MO1, in which he detected 2 litres of arrack. Appellant is a lady, with the help of one Janaky, PW1 conducted the body search and arrested the accused at the place of occurrence itself. He took 200 ml. as sample and sealed it at the place of occurrence. The remaining arrack in MO1 was also sealed at the place of occurrence itself. He prepared Ext.P1 seizure mahazar. The independent witness present there, attested Ext.P1. Ext.P2 is the arrest memo, Ext.P3 is the body search report and Ext.P4 is the arrest notice. Reaching at the ## **Crl.Appeal No.945 of 2004 4** Excise Office, registered crime, Ext.P5 is the crime and occurrence report. Accused was produced before court with Ext.P6 remand application. Ext.P7 is the property list. The sample arrack taken was forwarded to the chemical examiner’s laboratory. The label marked in MO1 was marked as Ext.P9. The consent letter of Janaky was marked as Ext.P10. Even though, PW1 stated that he sealed the seized articles at the place of occurrence, the procedure for sealing and method of sealing was not properly explained in Ext.P1 mahazar. Even though, he stated that Ext.P9 label was affixed in MO1, that itself is not sufficient to prove that he has taken the sample properly in a tamper proof condition. 5. PW3 is another official witness also supported the evidence of PW1. From the evidence of PW1 and PW3, it is clear that at the time of occurrence they have not included any independent witness and the procedure followed by PW1 was also not stated by PW3. Fairness is the basic principle of a Public Servent while acting in an ## **Crl.Appeal No.945 of 2004 5** official capacity, they have to show fairness in their official act. PW2 is an independent witness, who did not support the prosecution case. PW4 prepared Ext.P11 scene mahazar and PW5 prepared Ext.P12 site plan. The Apex court in **State of Rajasthan V. Daulat Ram AIR 1980 SC 1314** discussed the position of law when sample changed several hands before reaching Public Analyst as follows; “It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I.Aidanram, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during this period - a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right ## **Crl.Appeal No.945 of 2004 6** from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the seals remained intact.” 6. When PW1, Excise Preventive Officer seized 2 litres of arrack from the accused in front of the house of one Sundaran, he has to prove that the arrack was seized from the possession of the accused. He took one sample and sealed at the place of occurrence and produced it before Judicial First Class Magistrate Court, Vadakkencherry. No marking was given by him in the sample. While forwarding it to the Public Analysis Lab from court, nothing was produced before court by the prosecution to show that the court received the request with proper documents. Prosecution admitted that they produced the sample before this court and it was forwarded to the Chemical Analysis Lab through court. The Public Analyst who examined the sample did not disclose about the details and nature of the sample seal. In such a situation, it is the duty of the prosecution to prove that the samples were properly sealed before ## **Crl.Appeal No.945 of 2004 7** forwarding it to the Chemical Examiner's Lab. The above decision was followed by this court in **Ravi v. State of Kerala (2011 (3) KLT 353).** Para 13, reads thus: 13. It is difficult for us to believe that PW4 had produced the properties on 25.08.1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is ## **Crl.Appeal No.945 of 2004 8** proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant. 7. Here in this case, no such fairness was shown by the prosecution at the time of forwarding the sample before court. Therefore, the request for forwarding the sample to the Chemical Examiner's Lab is a relevant document and the nature of sealing has to be explained in it. This Court in **Joseph V. State of Kerala 2009(4) KHC 537** held that: “No request or forwarding note either produced or marked to indicate that a request was made ## **Crl.Appeal No.945 of 2004 9** to the Magistrate to send the sample bottle to the chemical examiner for analysis. In the absence of any forwarding note or requisition, and in the absence of any explanation as to how the Magistrate forwarded sample to the chemical examiner, evidence adduced by the prosecution in that regard cannot be relied upon” 8. It is the primary responsibility of the prosecution to prove all the ingredients of the offence. When the accused is charge-sheeted for an offence under the Abkari Act, it is for the prosecution to prove all the ingredients of the offence. When this burden is discharged by the prosecution, then only the accused has to explain the essential elements in the prosecution case. Analysing the evidence, it is found that prosecution failed to prove the case beyond reasonable doubt. The legal infirmity in connection with not producing the forwarding note is relevant and accused is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by **Crl.Appeal No.945 of 2004 10** the trial court under Section 58 of the Abkari Act is set aside and accused is acquitted and set at liberty. This appeal is allowed. STK Sd/- **P.D. RAJAN, JUDGE** **//TRUE COPY//** **P.A. TO JUDGE**