Lalan, S/o Divakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 19TH DAY OF DECEMBER 2014/28TH AGRAHAYANA, 1936** ## **CRL.A.No. 753 of 2004 (A)** **-------------------------(SC.NO.42/2002 OF IIIRD ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR DATED 01-01-2004) ------------------** **APPELLANT/ACCUSED:-** **------------------------------------------** **LALAN,S/O.DIVAKARAN, PUTHEN VEETTIL HOUSE, PADINJAKKARA VILLAGE, AROOR MUZHI DESOM, TRICHUR.** **BY ADV. SRI.M.H.HANIL KUMAR** **RESPONDENT/COMPLAINANT :-** **----------------------------------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.JUSTINE JACOB** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-12-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **C.T.RAVIKUMAR, J** ## **---------------------------------------** ## **Crl.A. No.753 of 2004** ## **----------------------------------------** Dated this the 19[th] day of December, 2014 ## **JUDGMENT** The appellant is the sole accused in S.C.No.42/2002 on the files of the court of the Additional Sessions Judge-III. (Adhoc) Fast Track No.I, Thrissur. He was convicted for the offence under section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo rigorous imprisonment for three months. 2. The case of the prosecution is that on 31.3.2000 PW1, the Sub Inspector of Police then attached to Vettilappara police station along with police party were on patrol duty and on getting information that a person is selling arrack from the rubber estate belonging to one Manu, S/o. Thomas that situates behind the community hall, Athirappilly Panchayath they reached the spot at about 5.15 pm and found the appellant there holding a can having capacity of two litres. On seeing the police party he fled from there and he was chased and intercepted and thereupon PW1 verified the can and upon tasting and smelling found that the liquid contained 3/4[th] thereof is arrack. A glass tumbler was also seized from his possession. They were seized by PW1 under Ext.P1 mahazar. From **Crl.A. No.753 of 2004** 2 the seized contraband liquid samples were drawn in three bottles each having a capacity of 180 ml. PW1 then took the residue liquid in MO1 can, samples and the appellant who was arrested under Ext.P5 memo to Vettilappara police station and crime No.14/2000 was registered there. PW5 conducted the investigation initially and thereafter he handed over the investigation to PW6. PW5 prepared the forwarding note and sent the samples for chemical analysis through court. Ext.P9 is the chemical analysis report. As per Ext.P9 the samples contained in the three bottles upon analysis found to have contained 43.16, 43.49 and 37.63 percentage by volume of ethyl alcohol, respectively. PW6 completed the investigation and filed the final report. To prove the charge against the appellant the prosecution has examined PWs 1 to 6 and got marked Exts.P1 to P9. MOs1 and 2 were also identified. After the closure of the prosecution evidence all the incriminating circumstances were put to the appellant/accused in the examination under section 313 Cr.P.C. and he denied all such circumstances. Finding that the appellant was not entitled to be acquitted under section 232 Cr.P.C. he was asked to enter on his defence. However, the appellant/accused did not adduce any evidence, either oral or documentary. On a careful evaluation of the evidence on records and upon hearing the arguments advanced by both sides the learned Sessions Judge found that the evidence of **Crl.A. No.753 of 2004** 3 PWs 1, 3 and 5 with Ext.P1 seizure mahazar, Ext.P3 list of property and Ext.P9 certificate of chemical analyst would prove the guilt of the accused and accordingly found him guilty under section 58 of the Abkari Act. Consequently, he was convicted and sentenced as aforesaid. 3. I have heard the learned counsel for the appellant as also the learned Public Prosecutor. 4. The core contention of the appellant was founded on a decision of a Division Bench of this Court in **Ravi v. State of Kerala** reported in 2011(3) KLT 353. It is contended that the prosecution which is under an obligation to prove that the samples drawn from the contraband liquor seized from the accused reached the hands of the chemical examiner in a fool proof condition failed to discharge the said obligation. It is submitted by the learned counsel for the appellant that the evidence of PW1, the detecting officer and the contradictory evidence of PW1 and PW3 who accompanied PW1 at the time of detection and PW5, the investigating officer would reveal the said aspect. It is also contended that the evidence of the said witnesses would reveal that the prosecution had no consistent case with respect to the sealing of the sample. That apart, it is contended that no evidence whatsoever was adduced by the prosecution to prove that the residue of the contraband liquid was **Crl.A. No.753 of 2004** 4 properly kept in tact and it was in safe custody and that MO1 containing the residue was properly sealed and labelled. So also, no evidence was adduced to establish that the samples taken in three bottles were labelled. Besides raising such contentions it is submitted that PW5, the investigating officer himself would admit the fact that he had not questioned the detecting officer. Though the investigating officer claimed to have prepared the forwarding note it was not legally brought on record. In the said circumstances the learned counsel contends that the prosecution has failed to prove that the sample drawn from the contraband liquor allegedly seized from the accused reached in the hands of the chemical examiner in a tamper proof condition. In the said circumstances, it is contended that Ext.P9 report would pale into insignificance and it is not sufficient to fix the culpability on the accused. The learned Public Prosecutor on the other hand contended that the evidence of PWs 1, 3, 5 and 6 would go to show that the appellant was found in possession of arrack and the samples taken from the can which was found from the possession of the appellant, after following the statutory mandate, reached the hands of the chemical examiner in a tamper proof condition and in such circumstances and in the light of Ext.P9 report and the evidence of PWs 1, 3, 5 and 6 the finding of guilty of the accused and consequential conviction and sentence call for no **Crl.A. No.753 of 2004** 5 appellate interference. 5. I have already adverted to the rival contentions. To lend support to the said contentions of the appellant the learned counsel for the appellant relied on decisions of this Court in **Manikandan v. State of Kerala** reported in 1999(2) KLT 592, **Rajamma v. State of Kerala** reported in 2000(1) KLT 466 besides the Division Bench decision in **Ravi** 's case (supra). The said decisions would undoubtedly go to show that the prosecution has an obligation to establish that the sample allegedly drawn from the contraband liquid allegedly seized from the possession of the accused reached the hands of the chemical examiner in a fool proof condition. Therefore, the question is whether the prosecution has succeeded in discharging the said obligation and whether the evidence adduced in this case were properly appreciated by the learned Sessions Judge in arriving at the conclusion that the prosecution has succeeded in establishing the guilt of the accused. PW1 is the detecting officer. He would depose that he sealed the sample drawn from the contraband liquid in three bottles having a capacity of 180 ml each with 25 paise. The evidence of PW1 would reveal that he did not depose that the samples thus taken from the contraband liquid were labelled. He had not deposed that MO1 viz., the can with the residue were sealed and labelled. PW3 is the police constable who accompanied PW3 at the **Crl.A. No.753 of 2004** 6 time of detection. Evidently, his version was believed by the learned Sessions Judge and it would reveal that on material points there is contradiction between the evidence of PW1 and PW3. According to PW3, 2 ½ litres of arrack was found from the possession of the appellant. At the same time, the very case of PW1 is that the appellant was found holding a jerry can having a capacity of 2 litres. MO1 is the can which is having capacity of 2 litres. While the detecting officer who sealed the samples after drawing them from the contraband liquid deposed to the effect that he had sealed them with 25 paise PW3 who accompanied him would depose to the effect that metal seal was affixed on the bottles. PW5 is the investigating officer and he would depose that metal seal was affixed on the bottles carrying the samples and at the same breath, he would depose that he had not questioned PW1, the detecting officer. Certainly, it is not the case of the prosecution that samples were collected not by PW1. PW6 is the then Sub Inspector of Police Vettilappara Police Station who completed the investigation and filed the final report. He did not depose that he questioned PW3, and at the same time PW3, would depose that he was questioned by PW6. Thus, it is not evident as to what was the investigation which was conducted by PW6. Though PW5 allegedly prepared forwarding note for sending the samples for chemical analysis no evidence was **Crl.A. No.753 of 2004** 7 adduced to establish preparation of forwarding note and that it was produced before the court. At any rate, it was not marked on the side of the prosecution. When the detecting officer deposed to the effect that he had sealed the samples drawn from the contraband liquid found from the possession of the appellant with 25 paise how could the investigating officer who failed to take statement from the detecting officer say that what was affixed was a metal seal. In the absence of conclusive proof regarding those aspects how could it be taken that the sample drawn from the contraband liquid found from the possession of the accused/appellant was sent for chemical analysis reached the hands of the chemical examiner in fool proof condition. In view of the contradictory version of PW1 and PW5 I am of the view that the benefit should go to the appellant in the light of the decisions referred above. Though going by the property list the residue contained in MO1 was produced before the court on 1.4.2000 it is evident that at the time of trial and identifying the material objects seal was not found on MO1 can and what was marked is only a black jerry Can sans the residue. In such circumstances, the prosecution ought to have examined the Thondi clerk to explain how the residue was lost. In the decision in **Rajamma** 's case (supra) this Court held that the absence of seal on material objects is fatal to the prosecution and mere arrest of the accused with material objects is **Crl.A. No.753 of 2004** 8 not sufficient to establish that the accused had committed the offence. In this case the detecting officer as also the investigating officer got no case that MO1 with reside was properly sealed and labelled and that apart there is no case of the prosecution that the samples drawn from the contraband liquid was labelled. As already noticed the evidence of PW1 on one hand and PW5 on the other hand are contradictory in regard to the sealing of the label. In such circumstances, the decision of this Court in **Ravi** 's case (supra) assumes relevance. Going by the said decision the prosecution has the duty to prove that it was the sample taken from the contraband liquid seized from the accused that reached the hands of the chemical examiner in a fool proof condition. When there is no proper sealing and labeling of the sample as also the residue and there is contradictory evidence in the matter of sealing of the sample from PW1 and PW5 it cannot be said that the prosecution has succeeded in proving that the sample drawn from the contraband liquid allegedly seized from the possession of the accused reached the chemical examiner for analysis in tamper proof condition. In the decision in **Manikandan** 's case (supra) this Court held that conviction could be entered against the accused in a prosecution only if it is proved that the sample which was analyzed was the very sample drawn from the contraband liquid allegedly found in the possession of the **Crl.A. No.753 of 2004** 9 accused. A careful scanning of the judgment of the learned Sessions Judge would reveal that the aforesaid aspects and the failure of the prosecution were not seriously considered by the learned Sessions Judge. Going by the decision in **Lakha Yadav v. State of Bihar** reported in AIR 1973 SC 2241 the Hon'ble Apex Court where, it was found that the trial court not only ignored but even misred part of the evidence and as a result thereof, has arrived at conclusions which on proper appraisal and reading of the evidence would be erroneous and unsustainable the High Court would competent to reverse those conclusions. True that **Yadav** 's case (supra) the High Court considered an appeal from acquittal and reversed the findings and it was that decision which was affirmed by the Hon'ble Apex Court by laying down the said decision. The aforementioned discussion would reveal that in this case also the learned Sessions Judge virtually, ignored certain relevant piece of evidence and misred certain evidence and as stated hereinbefore, a proper appraisal of those evidence and circumstances would reveal that the conclusions of the trial court were erroneous and against the weight of evidence. In such circumstances I am of the considered view that it is absolutely unsafe to enter conviction against the accused/appellant with the evidence adduced in this case. In view of the above discussion this criminal appeal is allowed. The judgment in 10 ## **Crl.A. No.753 of 2004** S.C.No.42/2002 of on the files of the court of the Additional Sessions Judge-III. (Adhoc) Fast Track No.I, Thrissur is set aside. The accused is acquitted of charge. His bail bond will stand cancelled and he is set at liberty. Sd/- **C.T.RAVIKUMAR,JUDGE.** dlk