Majeedkutty v. The Excise Inspector, Kollam Range

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: **“C. R.”** THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 19TH DAY OF JUNE 2014/29TH JYAISHTA, 1936 CRL.A.No.342 of 2004 (B) ----------------------------AGAINST THE JUDGMENT IN SC 1229/2002 of III ADDL. SESSIONS COURT, KOLLAM, DATED 07-02-2004 CP 3/2001 of J.M.F.C.-II, KOLLAM (CRIME No.99/97 OF KOLLAM EXCISE RANGE) ---------- ## APPELLANT/ACCUSED: ------------------------- MAJEEDKUTTY, S/O.HANEEFA KUNJU, SAJINA BHAVAN, THAZHAMPANAM, CHERIYELA THRIKKOVILVATTOM, KOLLAM. BY ADV. SRI.S.SANTHOSH KUMAR RESPONDENT/COMPLAINANT: --------------------------------- THE EXCISE INSPECTOR, KOLLAM RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.342 of 2004 **“C. R.”** -----------------------------------------------Dated this the 19[th] day of June, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court-III, Kollam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 1 lakh₹ and, in default of payment of fine, to undergo simple imprisonment for six months. The conviction and sentence so passed by the court below are challenged in 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: PW3, the Excise Preventive Officer, Excise Range Office, Kollam, and his party were on patrol at Thazhampana Thahamukku in Thrikkovilvattom Village, at about 6.00 p.m. on 13-08-1997. While so, the appellant was seen coming Crl. Appeal No.342 of 2004 -2- from the opposite side carrying a plastic sack in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the plastic sack, 25 plastic covers each containing 100 ml. of liquid were found in it. PW3 has taken two covers from them and opened them. On tasting and smelling the contents, it was revealed that the covers contained arrack. Therefore, the appellant was arrested then and there. PW3 has taken the arrack contained in the opened two covers in a 375 ml. bottle as sample. The quantity of the same was about 180 ml. The sample so taken was sealed. The remaining 23 plastic covers containing arrack and the empty two plastic covers were put into the plastic sack and sealed that sack. The sealed sample and the sealed sack were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. A sum of 20 was also found in the possession of the appellant and₹ the same was also seized by the excise party. PW3 has produced the appellant, contraband items seized and the Crl. Appeal No.342 of 2004 -3- records before PW4, the Excise Inspector. PW4 registered Crime No.99 of 1997 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report thus prepared by PW4. He has produced the appellant, properties and the records before the court on the next day. He has also submitted a requisition before the court for subjecting the sample to Chemical Analysis. PW5, the Excise Inspector, has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Kollam. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kollam and, from there, it was made over to the Additional Sessions Court-III, Kollam. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (i) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined Crl. Appeal No.342 of 2004 -4- PWs.1 to 5 and marked Exts.P1 to P3 and M.O.1 to M.O.3 series on their side. The appellant denied all the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, relying on the evidence adduced by the prosecution, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was found not guilty of the offence under Section 55(i) of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised several contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the contraband was seized by PW3 at about 6.00 p.m. on 13-08-1997 and produced the same before the Court on 14-08-1997. The properties were produced along with a List of Property on 14-08-1997. But, that List of Property was not sought to be marked and hence not marked on the side of the prosecution. It can be seen from Ext.P1 Seizure Mahazar that Crl. Appeal No.342 of 2004 -5- all the 25 plastic covers (23 contained arrack and two empty covers) were put together in the plastic sack and sealed the same. But, item No.1 in the List of Property is described as 25 plastic covers containing arrack of 100 ml. each (2.500 litre). Item No.3 is described as two covers opened for the purpose of taking sample. Item Nos.1 and 3 cannot go together. Even according to the prosecution, as described in Ext.P1 Seizure Mahazar, all the 25 covers, containing liquor and not containing liquor, were put into the plastic sack and sealed the same. Then, how can such material objects be produced in this fashion before the court. No explanation has been offered by the prosecution for happening such a thing. That apart, it is significant to note that on 14-08-1997 when the properties were produced before the court, the office of the court made a submission before the learned Magistrate to the effect that there was no space for keeping the properties and hence items 1 to 3 properties in the List of Property may be returned to the Excise Inspector, Kollam, for safe custody until further orders. That submission was Crl. Appeal No.342 of 2004 -6- granted by the learned Magistrate writing 'Yes'. If that be the position, the bulk of the contraband as well as its sample were taken back on 14-08-1997 by the Excise Inspector. Then, certain questions arise. When they were again produced before the court? No answer was forthcoming. 6. It is noted in Ext.P3 Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory that the sample was sent from the Magistrate's Court to the Laboratory with letter No.T 240/1997 dated 13-03-1998. That is seven months after the properties including the sample were returned from the court for safe custody to the Excise Inspector. The Property Clerk of the court who dealt with the sample at the time of receipt of the same in court and while sending it to the Chemical Examiner was not examined. The facts and circumstances available in this case indicate that the properties were produced only at a later point of time. Therefore, two questions normally arise in such a situation. (1) Where the properties were kept after they were returned from the court on 14-08-1997 till they Crl. Appeal No.342 of 2004 -7- were again produced before the court? No evidence was adduced by the prosecution in respect of that matter through the examination of the excise officials. Second question is that under whose custody the properties were kept during the said period? No answer was given by the prosecution in respect of that matter also. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Judge of this Court 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. ..........” Therefore, in that case, the accused was found to be entitled to benefit of doubt. In the case on hand also such a benefit is to be extended to the appellant. 7. It is the prosecution case that the bulk of the contraband as well as the sample collected were sealed by Crl. Appeal No.342 of 2004 -8- PW3. PW3 also deposed that they were so sealed. The description in the List of Property does not show that the bulk was so sealed. Be that as it may, the sample is described in the List of Property as sealed. Whose seal was so affixed? No evidence is available regarding that aspect of the matter. It is noted in Ext.P3 Certificate of Chemical Analysis that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? None of the excise officials examined in the case deposed that sample seal was so provided. No Forwarding Note is seen among the case records. PW4 deposed before the court that he had submitted a requisition before the court for subjecting the sample to Chemical Analysis. It is usual that seal of the court will be affixed while sending the sample to the Chemical Examiner for analysis. Therefore, the sample seal noted in Ext.P3 can be the seal of the court also. A comparison of the seal of the court affixed on the bottle containing sample with the specimen seal of the court will not give any assurance that the sample of the Crl. Appeal No.342 of 2004 -9- contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. Hence, the report in Ext.P3 that ethyl alcohol was detected in the sample will not connect the accused with the crime alleged. 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 Crl. Appeal No.342 of 2004 -10- 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 (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. 9. In this case, the occurrence was on 13-08-1997. Ext.P3 Certificate of Chemical Analysis dated 30-06-1998 had been received by the court on 21-07-1998. The Crl. Appeal No.342 of 2004 -11- investigating agency should have submitted the Final Report before the court immediately after the receipt of Ext.P3. But, PW5 submitted the Final Report before the court only on 30-12-2000. The inordinate delay occurred in submitting the Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 10. Another aspect also has to be considered here. PW5 deposed that he had conducted the investigation in this case. He has also stated that he had questioned the witnesses and recorded their statements. PW4 does not have a case that he had conducted investigation in the case. Other official witnesses also do not have a case that they have conducted investigation. PW5 alone deposed that he had conducted the investigation and questioned the witnesses and recorded their statements. Seven persons including PW5 were cited by the prosecution as their witnesses. But, the statements of the witnesses were not Crl. Appeal No.342 of 2004 -12- produced before the court. PW5, during chief examination, raised the claim that he had conducted the investigation and questioned the witnesses and recorded their statements. But, during cross examination, he changed his version and stated that even though he had questioned the witnesses he had not reduced their statements into writing including the statements of PWs.2 and 3. On an analysis of the evidence of PW5 and other evidence available in this case, it can be found that no investigation as claimed by PW5 has been conducted in this case. 11. Section 50 of the Abkari Act deals with the investigation of the case and forwarding of report to the Magistrate. This Section reads as follows : “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Crl. Appeal No.342 of 2004 -13- Procedure, 1973 (Central Act 2 of 1974).” Section 50 thus shows that investigation into the offence shall be completed without delay. As soon as the investigation is completed, the Abkari Officer has to forward a report in accordance with sub section (2) of Section 173 of Cr.P.C. In the light of Section 50, a Final Report under Section 173 of Cr.P.C can be submitted only after completing the investigation of the case. Therefore, investigation is a prerequisite for forwarding a Final Report to the concerned Magistrate under sub section (2) of Section 173. In the case on hand, the investigating agency has not conducted an investigation into the offence alleged as contemplated under Section 50 of the Abkari Act. This is a serious irregularity committed by the investigating agency in this case. This lapse itself is sufficient for rejecting the prosecution case and acquitting the appellant of the offence alleged against him. 12. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant Crl. Appeal No.342 of 2004 -14- are liable to be set aside. The appellant is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act alleged against him. 13. 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 Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE