Mahabala Pojuari v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 6TH DAY OF AUGUST 2014/15TH SRAVANA, 1936 CRL.A.No.145 of 2005 (C) ----------------------------AGAINST THE JUDGMENT IN SC 855/2000 of ADDL. SESSIONS COURT (ADHOC-I), KASARAGOD DATED 21-12-2004 ------ APPELLANT/ACCUSED:: -------------------------- MAHABALA POOJARI, AGED 46, S/O.GIRIJA POOJARI, BAJAKKURE, KATTUKUKKE VILLAGE KASARAGOD. BY ADV. SRI.I.V.PRAMOD RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.145 of 2005 -----------------------------------------------Dated this the 6[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kasaragod, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of one and a half years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo rigorous imprisonment for a period of six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Circle Inspector, Excise Circle Office, Kasaragod, and his party were on patrol at Bajakkure in Kattukukke Village at about 6.00 a.m. on 05-11-1999. While Crl. Appeal No.145 of 2005 -2- so, the appellant was seen coming from the opposite side carrying a bag in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the plastic bag carried by the appellant, twenty 375 ml. plastic bottles of Boss Whisky meant for sale in Karnataka and twelve 375 ml. glass bottles of Boss Whisky meant for sale in Karnataka were found in it. The examination of the bottles was conducted by opening one bottle each from the plastic bottles as well as from the glass bottles. Since the appellant had committed an offence under the Abkari Act, PW1 arrested him preparing Ext.P2 Arrest Memo. All the bottles and the plastic bag were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Out of the bottles, the two opened bottles each containing 370 ml. of liquor were taken as samples and sealed them. Thereafter, PW1 reached the Excise Circle Office, Kasaragod, at 9.30 a.m. and prepared an Occurrence Report. The appellant, properties and the records along with the copy of the Occurrence Report were handed over to Crl. Appeal No.145 of 2005 -3- PW4, the Excise Inspector, Excise Range Office, Badiadka, at 12.30 p.m. on that day as the place of occurrence was within the limits of that Range Office. PW4 registered Crime No.20 of 1999 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW4. He had produced the appellant before the court along with Ext.P8 Remand Report. He had also produced the properties along with the List of Property before the court. He had submitted the Forwarding Note in the court for subjecting the samples to chemical analysis. Ext.P5 is a copy of that Forwarding Note. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. He had conducted the investigation of the case. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Kasaragod. 4. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Kasaragod, and, from there, it was made over to Crl. Appeal No.145 of 2005 -4- the Assistant Sessions Court, Kasaragod. Later, the case was transferred to the Additional Sessions Court (Adhoc)-I, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P8 and MO1 and MO2 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. Ext.D1 was marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that PW1 had detected the offence on 05-11-1999 and the appellant, properties and the records were handed over to PW4 at 12.30 p.m. on that day Crl. Appeal No.145 of 2005 -5- itself. The appellant and the properties were produced before the court along with Ext.P8 Remand Report, Ext.P4 List of Property and other documents on 05-11-1999 itself. It can be seen from Ext.P4 List of Property that the properties were directed to be verified and returned for custody on 05-11-1999 itself as per the orders of the learned Magistrate. The direction so issued was for returning the properties so produced before the court on that day. The properties so produced include two samples described as items 2 and 4 in Ext.P4. Therefore, as per the direction of the learned Magistrate, all the properties including the samples were to be returned for safe custody. PW4 deposed before the court that the properties, except the samples, were returned to him from the court. The direction issued by the learned Magistrate and the deposition so made by PW4 cannot go together. Because, as per the direction issued by the learned Magistrate, the properties including the samples were to be returned to PW4. There is no endorsement appearing on Ext.P4 that the properties, except the samples, Crl. Appeal No.145 of 2005 -6- were returned to PW4. In such a circumstance, this Court is not in a position to accept the case of PW4 that the samples were not returned to him from the court. Because, the office of the Magistrate's Court was bound to return all the properties to PW4 as per the direction issued by the learned Magistrate. In the light of these facts, this Court is compelled to find that the samples were also returned to PW4 along with other properties. Therefore, a question arises as to in whose custody the properties including the samples so returned were kept and where they were kept? No explanation for the same was offered by the prosecution. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Single Judge of this Court has observed as follows: “..........In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13-09-1998 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Crl. Appeal No.145 of 2005 -7- Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, such a benefit has to be extended to the appellant. 6. One more aspect also has to be considered along with this. PW4 deposed that the Forwarding Note had been submitted before the court for subjecting the samples to Chemical Analysis, on 26-11-1999. Ext.P5 is a copy of that Forwarding Note. The date of preparation of Ext.P5 is noted in it as 26-11-1999. Whether PW4 had submitted another Forwarding Note before the court? It is noted in Ext.P8 Remand Report that various documents including 'chemical requisition' were also produced along with this document. A Forwarding Note is otherwise usually noted as chemical requisition. But, such a chemical requisition was not marked and not seen among the records. 7. It is noted in Ext.P1 Seizure Mahazar that the samples were sealed by PW1. The samples were described as sealed in Ext.P4 List of Property. PWs.1 and 2 deposed also that the samples were sealed. Ext.P6 is the Certificate Crl. Appeal No.145 of 2005 -8- of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples. It is also noted in Ext.P6 that the seals on the sample bottles were intact and found tallied with the sample seal provided. Whose sample seal was provided for comparison by the Chemical Examiner? PW1 deposed, during cross examination, that he had affixed the specimen seal on the original Forwarding Note. Can such a statement given by PW1 be believed? The Property Clerk who was dealing with the properties in the court was not examined in order to ascertain whether the specimen seal was affixed on the original forwarding note. The Forwarding Note, as could be seen from Ext.P5, had been prepared and submitted before the court by PW4. PW4 did not say that the specimen seal had been affixed on the Forwarding Note by PW1. If the specimen seal was so affixed on the original of the Forwarding Note, such seal impression should have been there in Ext.P5 as well. A specific column is provided in Ext.P5 for affixing the sample seal. But, that space is kept Crl. Appeal No.145 of 2005 -9- blank. No such specimen seal is affixed there. A copy of the Forwarding Note is kept and marked for serving a purpose, i.e., by examining the copy, the contents of the original can be ascertained. Simply keeping a copy without incorporating the matters incorporated in the original Forwarding Note will not serve the purpose intended by such a copy. Since Ext.P5 does not contain the specimen seal impression, it must be presumed that no such specimen seal of the seals affixed on the samples was affixed on the Forwarding Note. Therefore, the comparison made by the Chemical Examiner with the seal affixed on the samples may not be the sample of such a seal. That seal may be the seal of the court also. In the absence of proof of providing the sample seal of the seal affixed on the samples to the Chemical Examiner, there is no assurance that the samples of the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the samples was provided to the Chemical Examiner for comparison. Such a Crl. Appeal No.145 of 2005 -10- link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant. ## 8. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala** Crl. Appeal No.145 of 2005 -11- **(2011 (3) KLT 353)** has held that the prosecution 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 in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is 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. Therefore, for these reasons, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 10. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Crl. Appeal No.145 of 2005 -12- Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE