M. Ramachandran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT ## THE HONOURABLE MRS. JUSTICE ANNIE JOHN TUESDAY, THE 26TH DAY OF FEBRUARY 2019 / 7TH PHALGUNA, 1940 ## CRL.A.No. 768 of 2008 AGAINST THE ORDER/JUDGMENT IN SC 260/2004 of ADDITIONAL SESSIONS COURT (ADHOC-II) KASARAGODE DATED 26-03-2008 ## APPELLANT/ACCUSED: M.RAMACHANDRAN, AGED 35 YEARS, S/O. LATE APPU, ANIKKADY DESOM, KODAKKAD VILLAGE,, HOSDURG TALUK, KASARAGOD. BY ADV. SRI.V.N.RAMESAN NAMBISAN ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## OTHER PRESENT: SRI.S. RAMESH CHAND, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Crl. A. No. 768/2008 -2- ## **JUDGMENT** The appellant herein is the sole accused in SC.No.260 of 2004 on the files of the Court of Additional Sessions Judge (Adhoc-II), Kasaragod and that the case is arising out of the Crime No.27 of 2001 of Nileswar Excise Range Office registered for an offence punishable under Section 55(a) of the Kerala Abkari Act. 2. After the trial, the court below convicted and sentenced the appellant to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default, to undergo simple imprisonment for three months. Highly aggrieved by the judgment of the lower court, this appeal has been preferred. 3. The case of the prosecution is that on 27.08.2001, at about 5.30 p.m., the appellant was found in possession of and transporting 47 packets of illicit arrack illegally, each having a capacity of 100 ml. and three empty packets in a big shopper through the Njanamkai-Cheemeni road, 10 metres south of the grocery shop of one Murali bearing the building No.111/326 of Pilikkode Panchayath in Kodakkadu Village. According to the prosecution, the offence was detected by PW1, the then Preventive Officer accompanied by other Excise officials attached to the Nileswar Excise Range Office, Nileswar and registered the crime. Crl. A. No. 768/2008 -3- 4. After completing the investigation by PW6, the Excise Inspector, Nileswar Excise Range office, filed Charge Sheet No.18/2003 before the Court of the Judicial First Class Magistrate-I, Hosdurg and that the court has taken it on file as CP. No.152/2003. After the appearance of the appellant before the lower court, the copies of relevant records were furnished and since the offence is exclusively triable by a Court of Sessions, the learned Magistrate committed the case to the Sessions Court, Kasaragod. The learned Sessions Judge took the case on file as S.C.No.260/2004 and made over it to the Court of the Additional Sessions Judge (Adhoc-I), Kasaragod for trial and disposal. 5. On appearance of the appellant, charge was read over and he pleaded not guilty. The prosecution therefore examined PWs1 to 6 and marked Exts.P1 to P7 and MO1 series. On the closure of the prosecution evidence, the appellant was questioned and called upon him to tender evidence. But, the appellant did not adduce any evidence. Thereafter, the appellant was found guilty and convicted thereunder. 6. According to the appellant, the lower court has not considered the case advanced by the appellant. The prosecution has failed to produce evidence to furnish that contraband articles found in the possession of the appellant was in connection with export, import, transport or transit. So, Sections 8(1) and (2) or 55(a) of the Abkari Act will not be attracted in this case. The lower court ought not to have Crl. A. No. 768/2008 -4- relied on the official witness in convicting the accused. The prosecution has failed to establish that the search was conducted properly. The Chemical analysis report is not reliable and it was not taken properly from the custody of the appellant. The definite case of the prosecution is that PW1, the detecting officer, has seized about 47 packets of illicit arrack, each having a capacity of 100 ml. in a big shopper, which was intended for transporting the same illegally on the road near the grocery shop of one Murali. The offence was detected by Excise Preventive Officer, who was examined as PW1 and he has testified that on 27.08.2001, while he was on patrol duty along with other Excise personnel, he found this appellant at about 5.30 pm., walking with a big shopper towards east through the road, near the grocery shop of one Murali. On suspicion, PW1 inspected the big shopper in the presence of witnesses and it was found that it contained fifty packets of illicit arrack. After that, he has taken sample of arrack, sealed the sample bottle and affixed label containing the signatures of himself, the witnesses and the appellant. Thereafter, he prepared seizure mahazar and arrested the appellant from the spot and the arrest memo and seizure mahazar were marked respectively as Exts.P1 and P2. The big shopper along with the packets of arrack was marked as MO1 series. PW2 is another Preventive Officer, who was accompanying PW1 at the time of detection. He has also identified MO1 series produced before the court and also admitted Crl. A. No. 768/2008 -5- that Ext.P2 seizure mahazar contain his signature. It is to be noted that PWs3 and 4 are the independent witnesses cited by the prosecution, but they turned hostile to the prosecution. But they admitted their signature on Ext.P2 seizure mahazar. PW5 is the Village Assistant, who prepared the site plan and marked as Ext.P3. PW6 is the Excise Inspector, who conducted the investigation by questioning the witnesses and by proceeding to the place of detection, he has laid the charge before the court. The prosecution has brought the Chemical Analysis Report, which was marked as Ext.P4 through PW6. PW7 is the Assistant Excise inspector, who prepared the crime and occurrence report and produced the contraband articles before the court. Ext.P5 is the crime and occurrence report. The property list and the forwarding note were marked respectively as Exts.P6 and P7. 7. The learned counsel for the appellant has pointed out that Sections 55(a) and 8(1) of the Abkari Act is not attracted in this case. In order to support his argument, he has cited a ruling in _**Raman v. State of Kerala [2007 (4) KLT 223]**_ wherein it has held that unless possession of contraband liquor was incidental or in connection with export, import, transport or transit of liquor, no offence can be made out under Section 55(a) of the Abkari Act. it has also held that possession of foreign liquor in excess of prescribed quantity, amounts to violation of provisions of Foreign Liquor Rules, attract punishment under S.63 only. Crl. A. No. 768/2008 -6- 8. But in this case, contraband articles alleged to have seized from the possession of the appellant was illicit arrack. It was also argued that under Section 55(a) of the Abkari Act, the prosecution must be alleged and proved that the possession of contraband liquor was incidental or in connection with export, import, transport or transit of the goods. Since the prosecution failed to establish that the possession of the contraband articles was incidental or in connection with export, import, transport or transit of liquor, the appellant is entitled to get acquittal as prayed for. 9. This fact has reiterated in Surendran v. Excise Inspector [2004(1) KLT 404]. The main attack of the appellant's counsel was against the charge levelled against the appellant under Section 55(a) of the Abkari Act. For this purpose, the prosecution mainly relied upon the testimony of two official witnesses, who was examined as PW1 and PW2. 10. PW1 has testified that on 27.08.2001, while he was on patrol duty along with other excise personnel, found the accused at about 5.30 p.m., walking with a big shopper towards east through the road near the grocery shop of one Murali. Feeling suspicion, he inspected the big shopper in the presence of witnesses and it was found that it contained 50 packets of illicit arrack. He has also deposed that he took the sample of the arrack, sealed the sample bottles and affixed the label containing the signatures of himself, the witnesses and the accused. He has further Crl. A. No. 768/2008 -7- deposed that he took the contraband articles into custody by preparing Ext.P2 seizure mahazar and arrested the accused as per Ext.P1 arrest memo. The big shopper along with the packets of arrack was marked as MO1 series. 11. PW2 is another Preventive Officer, who accompanied PW1 at the time of detection. When the accused was quetioned under Section 313 Cr.P.C., he pleaded not guilty to the charges levelled against him and submitted that there was no arrest as claimed by the prosecution. The crucial question to be considered is whether there is any credible evidence to prove the charge levelled against the appellant under Section 55(a) of the Act. The prosecution has cited two official witnesses and they were examined as Pws 1 and 2. PWs 3 and 4 were two independent witnesses. They have not supported the case of the prosecution. But, they have stated that they have signed the seizure mahazar. PW3 has deposed that Ext.P2 seizure mahazar does not contain his signature. The court below has relied on the decision in _**Sivaraman v. State of Kerala**_ [1981 KLT SN 9 Case No. 17], in which it is held that the mere fact that the independent witnesses who signed the mahazar have turned against the prosecution and did not speak about the occurrence, does not mean that the occurrence had not taken place as alleged by the prosecution or that they were not present at the time of occurrence. It was also held that instances are not rare where Crl. A. No. 768/2008 -8- the independent witnesses for reasons of their own go back on the contents of the mahazar, which they had attested. The prosecution has relied on the official witnesses, PWs 1 and 2, who has sworn before court in a consistent manner with regard to the details of detection. The contention raised by the appellant's counsel is that there is no whisper as to how and in what manner the material objects were produced before court and sent the sample for chemical analysis. No evidence was adduced in that respect. The learned counsel for the appellant has placed reliance on the decision in _**Narayani v. Excise Inspecto**_ r [2002 (3) KLT 725], in which it is held that in the absence of any evidence to prove that residue and samples were kept in the proper custody, the chance of tampering with the sample taken and the residue seized cannot be ruled out. 12. The alleged incident was occurred on 27.08.2001 and the property list was prepared on 28.08.2001. The learned counsel for the appellant has pointed out that the prosecution has produced the forwarding note and the same is available in the records. On going through the record, I find that the sample seal affixed on the bottle was not produced along with the forwarding note. In this connection, the learned counsel has also placed reliance on _**Valsala v. State of Kerala**_ [1993 (2) KLT 550 (SC)] in which it is held that the article seized appears to have been not kept in proper custody and proper form so that Crl. A. No. 768/2008 -9- the court can be sure that what was seized only was sent to the Chemical Examiner. In _**Sasidharan v. 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). 13. In _**Krishnamma v. State of Kerala**_ [Judgment dated 09.10.2015 in Crl.Appeal No. 214 of 2006], it is held that the absence of sample seal in the space provided in the copy of the forwarding note is sufficient reason for presuming that the sample seal is not provided in the Original Forwarding Note. 14. Unless and until the Forwarding Note is produced, it is difficult to find out that the seal affixed on the forwarding note is one and the same and therefore, there is nothing to show that the alleged sample taken from the place of occurrence was the sample which had been forwarded to the Laboratory. The prosecution has failed to succeed in Crl. A. No. 768/2008 -10- proving the guilt of the accused beyond reasonable doubt. For the above reasons, this appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is set at liberty forthwith. The bail bond, if any, executed shall stand cancelled forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl. A. No. 768/2008 -11-