Leelamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **MONDAY ,THE 07TH DAY OF JANUARY 2019 / 3RD ASWINA, 1940** **CRL.A.No. 77 of 2008** **AGAINST THE JUDGMENT IN SC 820/2005 of ADDL.SESSIONS COURT, FAST TRACK COURT II, ALAPPUZHA DATED 14-12-2007** ## **APPELLANT/ACCUSED:** **LEELAMMA** **D/O KUNJU PANICKEN,MAVELIPARAMBIL, PURAKKAD, PANCHAYATH WARD 6, PURAKKAD VILLAGE, AMBALAPPUZHA.** **BY ADV. SRI.A.KRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** **PP SRI.RAMESH CHAND** **PP SRI.SWAMIDAS K N** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.09.2018, THE COURT ON 07.01.2019 PASSED THE FOLLOWING:** 2 Crl.A No. 77 of 2008 ## **JUDGMENT** The appellant is the accused in S.C.No. 820 of 2005 on the files of the Additional Sessions Court, Fast Track-II Alappuzha for an offence punishable under Section 55(g) of the Kerala Abkari Act. 2. The case of the prosecution is that on 29/09/2003, at about 5 p.m., the appellant was found in possession of 60 liters of fermented wash in four plastic pots having the capacity of 15 litres buried on the south eastern side of the compound wall in front of her house by name Maveliparambil bearing door No.414 in Ward VI of Purakkad Panchayath in Ambalapuzha Taluk. 3. The trial court examined PWs1 to 9 and Exts. P1 to P8 were marked. MO1 to MO3 were also marked. The appellant was examined as DW1 and the copy of the Ration card was produced and marked as D1. 4. After considering the entire facts and evidence of the case and after hearing both sides the appellant was convicted and sentenced to undergo simple imprisonment for one year and to pay a fine of `1,00,000/- and in default to pay the fine, to undergo simple imprisonment for two months. Set off was also allowed. Highly aggrieved by the same, this appeal has been filed. 3 Crl.A No. 77 of 2008 5. In fact, the appellant was charge-sheeted under section 55(g) of the Kerala Abkari Act. The allegation is that on 29/9/2003, at about 5 p.m., the appellant was found in possession of about 60 litres of fermented wash in four plastic pots each having the capacity of 15 liters buried on the south eastern side of the compound wall in front of her house by name Mavelipparambil bearing door no.414 in ward VI of Purakkad Panchayath in AmbalapPuzha Taluk. 6. The Circle Inspector of Excise, Alappuza, who detected the case, was examined as PW1 and he deposed that while he was on patrol duty along with his party on 29/09/2003 at about 5 pm and when the excise party reached in front of SNDP Higher Secondary School at Purakkad, he has got an information that the appellant was keeping fermented wash in her house intended for the purpose of manufacturing arrack. Immediately he prepared search memorandum and sent to the court for conducting search in the house of the appellant. He had conducted search along with the party and witnesses in the residence of the appellant; but he could not able to detect anything inside her house. Thereafter, he searched the premises of the house of the appellant and seized two plastic pots and two aluminum pots containing full of liquid which were found buried there. He tested the liquid by smelling and found that the pot contained wash. Thereafter, in the presence of witnesses and members of the party, he had collected about 500 ml of 4 Crl.A No. 77 of 2008 fermented wash as sample in a bottle having capacity of 750 ml and sealed the same affixing label containing signature of the appellant, witnesses and himself. The balance wash were destroyed at the place. The appellant was not arrested due to the want of women police constable. He has also produced the plastic pots, aluminium pots and the plastic papers used for tying the pots before the court and the same were identified by him. 7. PW2 was the Preventive Officer who accompanied PW1. He, too, has given evidence corroborating the evidence of PW1 in material particulars regarding the alleged occurrence. He has also identified his signature in the Mahazar (Ext.P1) and pots and plastic papers were produced before court as M.O.1, M.O.2 and M.O.3 series. PW3 is also an independent witness. He has denied having seen the occurrence and therefore, he was declared hostile to the prosecution. 8. PW4 is the Excise range Inspector, Alappuza. According to him, he received the thondi articles and records from PW1 and registered case and thereafter, the records and thondi articles along with requisition for sending the sample for chemical analysis were produced before court. PW5 was the Secretary of Purakkad Grama Panchayat, who has issued the ownership certificate in respect of residence. PW6 is the Village Officer of Purakkad as on 02/07/2005. On request of the Excise Circle Inspector, Alappuza, he has issued possession certificate 5 Crl.A No. 77 of 2008 in respect of the property involved in this case and that certificate was marked as Ext.P6. Ext.P6 would show that C.J. Leela D/o. Veronica of Mappilaparambu house is one and the same person. PW7 is the Circle Inspector of Excise, Alappuzha, who has conducted investigation of the case and filed the charge before this court. PW8 is also an independent witness who turned hostile to the prosecution. PW9 is the Excise Inspector in Excise range office, Alappuzha and he has verified the records and filed the charge sheet before this court. Ext.P8 is the chemical analysis report. According to DW1, she is residing along with her two daughters and their children. She has registered a case under the leader ship of Ayalkoottam of SNDP Branch No. 796 of which she was a member and that she was the Convener of Vayalvaram Ayalkoottam and that representations have been made to the authorities against manufacturing of illicit arrack in her locality. Therefore, she was also implicated at the instance of the persons who were aggrieved by the same and filed a false complaint against her. It has come out that eventhough the house of the appellant was searched, nothing was detected from there. The case of prosecution is that the so-called contraband articles were seen from the premises of the appellant. In fact the appellant was not arrested in this case. The independent witnesses turned hostile to the prosecution. It is true that the mere examination of independent witness is not a ground to acquit 6 Crl.A No. 77 of 2008 the appellant from the charges against him. The learned counsel for the accused strenuously argued that due to enemity towards the appellant, as she was the active worker against the illicit manufacturing of the arrack, she was falsely implicated in this case. Moreover, he has pointed out that there is absolutely no evidence to prove that the contraband articles were seized from the premises of the appellants residence. Another argument was that the prosecution has failed to produce the forwarding note and got it marked. Ext.P1 is the Mahazar; Ext.P2 is the search list; Ext.P3 is the occurrence report. Ext.P4 is the thondi list; Ext.P5 is the ownership certificate; Ext.P6 is the possession certificate; Ext.P7 is the certificate of Village Officer; and Ext.P8 is the chemical analysis report. On analysing the evidence, it is revealed that nowhere it is stated that the forwarding note was produced and got it marked. The alleged offence was detected in the year 2003. The appellant herein was not arrested in this case. The charge sheet in this case was filed in the year 2005. i.e. on 23/09/2005. So there is a delay of nearly 2 years in filing the charge sheet before this court. According to the learned counsel for the appellant, the gross delay in conducting investigation in this case is fatal to the prosecution. The delay in conducting the investigation is not explained by the prosecution also. The alleged sample was sent for chemical analysis only on 02/08/2004. i.e. about one year after the date of detection of offence. The chemical 7 Crl.A No. 77 of 2008 analysis report, which is marked as Ext.P8 shows that with reference to letter No.TR/185/2003 dated 30/07/2004 received from the Judicial First Class Magistrate, Ambalappuza, it was certified that the same was received by the laboratory on 02/08/2004. After analysis, it was written that the sample of liquid contain 8.12% by volume of ethyl alcohol. The chemical analysis is dated by 06/02/2005. So there is no explanation on the side of the prosecution why the delay was occurred in sending the sample for chemical analysis report . 9. In fact, this sample was kept nearly one year before sending for chemical analysis. Evidently, there is a gross delay in analysing the sample by the prosecution. In the decision reported in _**Kumaran P. v. State of Kerala and another**_ [2016 (5) KHC 632], the Apex Court has held that the sample which was taken from the spot has to be produced before court in time and if there is delay, the prosecution has to explain what prevented them from producing the sample before court. In the absence of the explanation by the prosecution, the accused is entitled to the benefit of doubt. 10. In _**Valsala v. State of Kerala**_ [1993 (2) KLT 550 (SC)] it is held that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. In _**Sasidharan v.**_ 8 Crl.A No. 77 of 2008 _**State of Kerala**_ (Judgment dated 01.01.2007 passed by this Court in Crl.Appeal No. 1128 of 2006), it is held thus: “There is also no evidence before court to show the date of despatch of the sample. In a case of this nature, the prosecution can succeed only if it establishes that the sample which had changed several hands had ultimately reached the hands of the chemical examiner in a tamper proof condition and that it was the same sample which was drawn from the contraband liquor allegedly seized from the accused. There is absolutely no link evidence to establish that a sample was drawn from the jerry can allegedly seized from the accused and that the said sample reached the hands of the Chemical Analyst in a tamper proof condition. The conviction recorded and the sentence passed by the court below overlooking the above vital aspects cannot be sustained and are accordingly dislodged.” The same decision has been reiterated in _**State of Rajasthan v. Daulath Ram**_ (AIR 1980 SC 1314). 11. In the light of the decisions cited above, I find that there is gross laches on the side of the prosecution in conducting investigation and sending forwarding note to the court etc. Moreover, there is gross delay in sending sample for chemical analysis. Therefore I find that benefit of doubt is in favour of the appellant herein and she is entitled to get acquittal of the aforesaid offences. Hence this appeal is allowed and she is set at liberty forthwith. The bail bond, if any, executed shall stand cancelled. **Sd/-** **ANNIE JOHN JUDGE** PV