Madhusoodanan @ Madhu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938 CRL.A.No. 1654 of 2004 (A) ----------------------AGAINST THE JUDGMENT IN SC 654/1999 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 10-09-2004 APPELLANT(S)/ACCUSED:: --------------------- MADHUSOODANAN @ MADHU, S/O. PARAMESWARAN NAIR, KARALIL PUTHEN VEEDU,, THUNDIL MUKKU KIZHAVOOR, THRIKKOVILVATTOM, KOLLAM. BY ADVS.SRI.MATHEWS J.NEDUMPARA SRI.BIMAL K.NATH ## RESPONDENT(S)/COMPLAINANT:: --------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. M.V. ANANTHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B. SUDHEENDRA KUMAR, J.** ------------------------------------------------- ## **Crl.A. No. 1654 of 2004** ------------------------------------------------- Dated this the 7[th] day of February, 2017 ## **JUDGMENT** The appellant was convicted by the court below under Section 55 (a) and (i) of the Abkari Act. The court below sentenced the appellant to rigorous imprisonment for three years and a fine of Rs. 1,00,000/- and in default to simple imprisonment for one year under Section 55 (i) of the Abkari Act. No separate sentence was awarded for the offence under Section 55(a) of the Abkari Act. 2 The prosecution allegation is that on 6-5-1999 at about 6.45 p.m., the appellant was found in possession of 1.2 litres of arrack, in contravention of the provisions of the Abkari Act. Crl.A. No. 1654 of 2004 -2- 3. Heard. 4. The learned counsel for the appellant has argued that since there was inordinate and unexplained delay in producing the contraband and the sample before the court, the appellant is entitled to benefit of doubt. It has been further argued by the learned counsel for the appellant that since the arrest of the appellant, seizure of the contraband sampling and the investigation were done by the Assistant Sub Inspectors of Police, who were not Abkari Officers under the Act as per SRO 321/1996 dated 29-3-1996, the appellant is entitled to benefit of doubt on that reason as well. 4. In this case, the contraband articles were seized on 6-5-1999. However, the said articles and the sample were produced before the court only on 13-5-1999 as per Ext. P3 property list. The evidence of PW5 would also show that the contraband articles and the sample were produced before the Court only on 13-5-1999. Eventhough Crl.A. No. 1654 of 2004 -3- PW5 stated that the sample and the contraband were in his safe custody till their production before the Court, no explanation had been given by PW5 as to why there was delay of 7 days in producing the contraband and the sample before the Court. Since there was unexplained delay in producing the sample before the court, there cannot be any guarantee that the sample produced before the Court and examined in the Laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the appellant is entitled to benefit of doubt. 4. It is also to be noted that no forwarding note is seen marked before the Court. No forwarding note is also available with the records transmitted to this Court, which would show that no forwarding note was either prepared or produced before the court. 5. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus: “Further in the absence of specimen seal Crl.A. No. 1654 of 2004 -4- impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said Crl.A. No. 1654 of 2004 -5- that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 7. In Ravi v. State of Kerala [2011 (3) KLT 353], **t** he Division Bench of this Court held that the prosecution in a case under the Abkari Act could 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. 8. In this case, the forwarding note was neither Crl.A. No. 1654 of 2004 -6- prepared nor produced before the Court. Therefore, there is no satisfactory link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Therefore, there is no link evidence to prove that the sample examined in the laboratory was the sample drawn from the contraband seized from the appellant and consequently, the appellant is entitled to benefit of doubt on this ground as well. 9. In this case, PW5 detected the offence, seized the contraband, took the samples and arrested the appellant. PW5 was only an Assistant Sub Inspector of Police. The investigation in this case was conducted by PW7 who was also an Assistant Sub Inspector of Police. As per SRO 321/1996, only the officers of and above the rank of Sub Inspector of Police in-charge of Law and Order in the Police Department are officers competent to exercise all the powers and to discharge all the duties conferred and Crl.A. No. 1654 of 2004 -7- imposed of Abkari Officers. In a similar situation, the Court in Subramanian v. State of Kerala (2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised officer under the Abkari Act, especially under Sections 4 (d) and 70 of the Abkari Act as per SRO No. 234/1967 and hence, the seizure and arrest made by the Assistant Excise Inspector was without authorisation and jurisdiction. 10. The Court in Sasidharan v. State of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmanian (supra) with approval and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8-52009 to perform the duties under Sections 31,32,34, 35 and 38 to 53 of the Abkari Act. 11. The learned Public Prosecutor has submitted that even now the Assistant Sub Inspector of Police is not an Abkari Officer. In this case, PW5 detected the offence, seized the contraband, took the sample and arrested the Crl.A. No. 1654 of 2004 -8- appellant. PW7 conducted the investigation. Since PW5 and PW7 were not authorised offices under the Abkari Act, the seizure and the sampling of the contraband and the arrest of the appellant by PW5 and the investigation conducted by PW7 were without jurisdiction and authorization and consequently, the appellant is entitled to benefit of doubt on that reason as well. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 55 (a) and (i) of the Abkari Act and the appellant is acquitted for the said offences. The bail bond of the appellant stands discharged. ## **Sd/-B. SUDHEENDRA KUMAR,** **JUDGE** . ## /true copy/ ## P.S. to Judge Ani/