Maniyan @ Ramachandran S/O Krishnankutty Nair v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 5TH DAY OF APRIL 2016/16TH CHAITHRA, 1938 CRL.A.No. 1360 of 2007 (D) -------------------------------AGAINST THE JUDGMENT IN SC 984/2005 of ADDL.DISTRICT COURT (ADHOC)-II, PALAKKAD DATED 10-07-2007 ----------- APPELLANT/ACCUSED: ------------------------- MANIYAN @ RAMACHANDRAN S/O. KRISHNANKUTTY NAIR, KULAPPURAKKAL VEEDU,, AMBALAPPARA VILLAGE, MELUR, OTTAPPALAM, PALAKKAD. BY ADV. SRI.VINOD KUMAR.C ## RESPONDENT/COMPLAINANT: --------------------------------- ## STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1360 of 2007 -----------------------------------------------Dated this the 5[th] day of April, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Palakkad, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for three 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: PW4, the Excise Inspector attached to the Excise Enforcement and Anti Narcotic Special Squad, Palakkad, and his party were on patrol at about 6.00 p.m. on 11-11-1999. Crl. Appeal No.1360 of 2007 -2- While so, PW4 received reliable information that the appellant was possessing arrack in his house at Meloor in Ambalappara Village. Therefore, after preparing and sending a Search Memorandum to the court, PW4 and his party reached that house when, seeing the excise party, the appellant who was sitting in the front veranda of that house attempted to flee away with the bottle in his hand. Seeing this, entertaining a doubt, the excise party stopped him there. PW4 examined the 1.5 litre plastic bottle carried by him when it was revealed that it contained about one litre of arrack. Thereafter, PW4 and his party searched the house of the appellant in the presence of witnesses. During search, a 1.5 litre bottle containing full of arrack was found in the kitchen of that house. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW4 preparing Ext.P4 Arrest Memo. The two plastic bottles containing arrack were seized by PW4 under Ext.P2 Seizure Mahazar in the presence of witnesses. Ext.P1 is the Search List. The arrack contained in both the bottles Crl. Appeal No.1360 of 2007 -3- appeared to be alike. Therefore, PW4 had drawn 300 ml. of arrack as sample in a 375 ml. bottle from the bottle containing one litre of arrack. The sample bottle as well as the plastic bottles containing bulk of arrack were sealed and labelled. Thereafter, PW4 prepared Ext.P5 Crime and Occurrence Report in respect of the occurrence. Subsequently, the appellant and the properties were entrusted with the Excise Range Office, Ottapalam, by the Special Squad. Thereafter, PW6, the Assistant Excise Inspector, Excise Range Office, Ottapalam, had registered Crime No.26 of 1999 of that Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus prepared by PW6. He had produced the appellant and the properties along with Ext.P9 Remand Report and Ext.P7 List of Property before the Judicial First Class Magistrate's Court, Ottapalam. Ext.P8 is a copy of the Forwarding Note. The investigation of the case was conducted by PW7, the Excise Inspector, Excise Range Office, Ottapalam. He had questioned the witnesses and recorded their statements. He Crl. Appeal No.1360 of 2007 -4- had gone to the place of occurrence and prepared Ext.P10 Site Plan showing the place of occurrence. Ext.P11 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Ernakulam. PW7 had completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Palakkad, and, from there, it was made over to the Assistant Sessions Court, Ottapalam. Later, the case was withdrawn and transferred to the Additional Sessions Court (Ad hoc)-II, Palakkad. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P11 and M.O.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court Crl. Appeal No.1360 of 2007 -5- below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) 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 by the court below against him. Ext.P11 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Ernakulam. It is reported in this document that ethyl alcohol was detected in the sample. It is also stated in Ext.P11 that the seal on the packet was intact and found tallied with the sample seal provided. Whose sample seal was provided? It is the case of the prosecution that the appellant was found in possession of about 2.5 litres of arrack on 11-11-1999 and he was arrested by PW4 then and there and the contraband was seized under Ext.P2 Seizure Mahazar. A sample of the contraband was separately taken in a bottle for subjecting it to chemical analysis. The sample bottle as well as the plastic bottles containing bulk of arrack Crl. Appeal No.1360 of 2007 -6- were sealed. PW4 deposed also that the sample bottle was sealed. It is stated in Ext.P7 List of Property that the sample and the plastic bottles were sealed. Therefore, by comparing the seal affixed on the sample bottle with the sample of that seal provided, the Chemical Examiner can ascertain the genuineness of the sample. Ext.P8 is a copy of the Forwarding Note. A copy of the covering letter issued by the court to the Chemical Examiner is also seen enclosed with Ext.P8. It can be seen from this document that the sample bottle was sent in a packet and specimen seal of the court was affixed in that letter. A mere reading of the statement made in Ext.P11 Certificate of Chemical Analysis that the seal on the packet was intact and found tallied with the sample seal provided would go to show that the Chemical Examiner compared the seal on the packet with the sample seal provided. Naturally, the sample seal provided for comparing the seal on the packet was nothing but the sample seal seen affixed on the covering letter. Therefore, presumably, the Chemical Examiner compared the seal on Crl. Appeal No.1360 of 2007 -7- the packet affixed by the court with the sample of that seal provided from the court. Such a comparison of the seal will not assure the genuineness of the sample drawn from the bulk of arrack allegedly seized from the appellant. Such an assurance is possible only when the seal affixed on the sample bottle is compared with the sample of that seal provided for comparison to the Chemical Examiner. Such a link evidence is absent in this case. Moreover, the property clerk of the court who was dealing with the properties in the court was not examined. Had he been examined, some light would have been available as to whether the genuine sample was actually sent to the Chemical Examiner for examination. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW4 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is provided to the Chemical Examiner for comparison. Therefore, there is no assurance that the Chemical Examiner Crl. Appeal No.1360 of 2007 -8- examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 6. 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** **(2011 (3) KLT 353)** has held that the prosecution can succeed only if it is shown that the contraband liquor which Crl. Appeal No.1360 of 2007 -9- 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, in the case on hand, Ext.P11 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 7. Section 50 of the Abkari Act deals with investigation and submission of report before 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- Crl. Appeal No.1360 of 2007 -10- section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. 8. The investigation was conducted by PW7, the Excise Inspector, Excise Range Office, Ottapalam. The records show that he had questioned the witnesses on 01-12-2004, 10-12-2004, 12-12-2004, 19-12-2004 and 31-12-2004. The alleged occurrence in this case had taken place on 11-11-1999. Therefore, there was inordinate delay in commencing and conducting the investigation. No explanation was also offered for such a delay. Ext.P11 Certificate of Chemical Analysis dated 01-08-2002 was Crl. Appeal No.1360 of 2007 -11- received by the court on 17-10-2002. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P11. But, the investigating agency had taken about two years and three months for submitting the Final Report before the court after the receipt of Ext.P11 by the court. The Final Report was filed only on 03-01-2005. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances of this case, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 9. It is the definite case of PW4 and PW5 that the appellant was seen by them with arrack in his hand in the veranda of his house. Ext.P10 is the Site Plan, showing also the house searched, prepared by PW7, the Investigating Officer. Admittedly, Ext.P10 was prepared, after a long delay, only on 31-12-2004. The details of the house are shown by drawing the plan of that house in Ext.P10. There is Crl. Appeal No.1360 of 2007 -12- no veranda in that house. PW7 admitted that as per Ext.P10 plan, the house has no veranda and in fact that house has no veranda. If that be the real position, what prompted PW4 to note the presence of a veranda in Ext.P2 Seizure Mahazar or what prompted PW4 and PW5 to state before the court that the appellant was first seen in the veranda with the contraband. Similarly, it is the case of PW4 that after preparing and sending a Search Memorandum to the court, he had conducted the search in the house of the appellant. But, no such Search Memorandum has been marked. If such a Search Memorandum had been prepared and sent to the court, at least, a copy of the same would have been tendered in evidence by the prosecution. But that was not done. PWs.1 and 2 were cited and examined as independent occurrence witnesses for proving the prosecution version of occurrence. But, they have not supported the prosecution case. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their case. When all the foregoing facts are considered, this Court Crl. Appeal No.1360 of 2007 -13- is of the view that it is unsafe to convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act purely based on the evidence of PWs.4 and 5. The appellant, at least, is entitled to the benefit of doubt. 10. 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. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(1) and (2) of the Abkari 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 Crl. Appeal No.1360 of 2007 -14-