MANOJ, S/O. KUNJAPPAN VELLAPPILLY VEEDU, KADAPPARA KARA, MALAYATTOOR VILLAGE ALUVA TALUK v. STATE OF KERALA

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 22ND DAY OF JANUARY 2016/2ND MAGHA, 1937 CRL.A.No. 2295 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 278/2005 of ADDITIONAL SESSIONS COURT (ADHOC)-I, ERNAKULAM DATED 03-10-2006 CP 23/2005 of JUDICIAL FIRST CLASS MAGISGTRATE'S COURT, PERUMBAVOOR ## APPELLANTS/ACCUSED: ---------------------------------------- 1. MANOJ, S/O. KUNJAPPAN VELLAPPILLY VEEDU, KADAPPARA KARA, MALAYATTOOR VILLAGE ALUVA TALUK. 2. ANTO, S/O. THOMAS, PARIYADAN HOUSE, KADAPPARA KARA, MALAYATTOOR VILLAGE ALUVA TALUK. BY ADVS.SRI.DINESH MATHEW J.MURICKEN SRI.P.V.BALAKRISHNAN ## RESPONDENT(S)/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA THE EXCISE INSPECTOR, KALADY RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM. R, BY PUBLIC PROSECUTOR MR. ABHIJITH LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 2295 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of January, 2016 ## **JUDGMENT** The appellants were convicted by the Additional Sessions Court (Ad hoc)-I, Ernakulam, for the offence under Section 8(1) and (2) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rupees one lakh each and, in default of payment of fine, to undergo simple imprisonment for six months each. Challenging the conviction and sentence passed by the court below, the appellants have preferred this appeal. 2. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor appearing for the respondent. CRA 2295/2006 2 3. The prosecution case is briefly stated as follows: On getting information at 11 p.m. on 21.11.2002 that illicit distilling of arrack was going on at Bharanikkuzhi in Malayattoor, PW1, the Excise Inspector, Excise Range Office, Kalady, and his party reached that place at about 12.30 a.m. on 22.11.2002. While so, the appellants were seen distilling arrack. Since they had committed offences under the Abkari Act, they were arrested preparing Ext.P2 Arrest Memo in respect of the first appellant and Ext.P3 Arrest Memo in respect of the second appellant. 10 litres of arrack distilled and the vessels and utensils used for distilling arrack were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. He had drawn 500 ml. of wash in a 500 ml. bottle as sample. He had also drawn 250 ml. of arrack as sample in a 375 ml. bottle. The sample bottles and the jerrycan containing rest of the arrack were sealed. Thereafter, PW1 and his party reached the Excise Range Office, Kalady, with the appellants, contraband CRA 2295/2006 3 items and the records and registered Crime No. 80 of 2002 of that Range Office. Ext.P4 is the Crime and Occurrence Report thus drawn by PW1. The samples and other properties were produced before the Judicial First Class Magistrate's Court, Perumbavoor, on that day itself along with Ext.P5 List of Property. The appellants were also produced before the court along with the Remand Report on that day itself. Forwarding Note was submitted before the court for the purpose of subjecting the samples to chemical analysis. Ext.P6 is a copy of that Forwarding Note. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Kalady. He had questioned the witnesses and recorded their statements. PW5, the Excise Inspector, Excise Range Office, Kalady, continued the investigation. He had gone to the place of occurrence and prepared Ext.P10 Scene Mahazar. He had also questioned CRA 2295/2006 4 the witnesses and recorded their statements. After completing the investigation, he had 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, Ernakulam, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Ernakulam. The court below framed a charge against the appellants alleging the offences under Sections 8(1) and (2) and 55(b) of the Abkari Act. The appellants pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P10 and MO.1 series to MO.3 on their side. Exts.D1 and D1(a) were marked on the side of defence through PW1. The appellants were examined under Section 313 of Cr.P.C. They denied all the incriminating circumstances shown against them. DW1 was examined by the defence. The court below, after considering the matter, found the appellants guilty of the offence under Section 8(1) and (2) CRA 2295/2006 5 of the Abkari Act and convicted them thereunder. The appellants were heard on the question of sentence and imposed the sentence on them. 5. The appellants have raised various contentions challenging the conviction and sentence passed against them. It is the case of the prosecution that the appellants were found distilling arrack and possessing 10 litres of arrack at about 12.30 a.m. on 22.11.2002. Therefore, they were arrested then and there and the contraband items were seized under Ext.P1 Seizure Mahazar. It is also their case that PW1 had drawn 500 ml. of wash in a 500 ml. bottle and 250 ml. of arrack in a 375 ml. bottle as samples and those samples and the jerrycan containing the bulk of arrack were sealed. It is specifically noted in Ext.P1 Seizure Mahazar that they were so sealed. The properties including the samples were produced before the court describing them in Ext.P5 List of Property. Ext.P5 also shows that the samples were sealed. PW1 deposed also that they were so CRA 2295/2006 6 sealed. 6. Exhibit P7 is the Certificate 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 stated in Ext.P7 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottles by PW1. Ext.P6 is a copy of the Forwarding Note submitted before the court for sending samples for subjecting them to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P6. Whether the sample seal was affixed on the original of Ext.P6 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P6, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved CRA 2295/2006 7 otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the samples drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, 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 was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. The matter does not end there. The clerk, who was dealing with the properties in the court, was not examined in this case. He is a competent witness for proving the fact as to whether the samples sent for chemical analysis were the samples CRA 2295/2006 8 drawn from the bulk allegedly seized by PW1 and produced in the court for subjecting to chemical analysis. But, the prosecution has not made an attempt to prove that fact through the examination of the property clerk of the court. In view of these facts, there is no assurance that the samples of the contraband allegedly seized by PW1 from the appellants had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the samples is 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 samples taken from the bulk allegedly seized from the appellants in this case. 7. 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 CRA 2295/2006 9 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 CRA 2295/2006 10 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. P7 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellants to the benefit of doubt. 8. It is the specific case of the defence that the appellants were arrested by the excise party from their own houses and not as claimed by the prosecution. PWs. 2 and 3 were cited as independent witnesses for proving the occurrence, arrest of the appellants and seizure of the properties. But, they have not supported the prosecution version of the occurrence. Their evidence is of no use for the prosecution for proving their case. They were declared CRA 2295/2006 11 hostile to the prosecution. PW5, who had conducted part of the investigation, claimed that he had gone to the place of occurrence and prepared Ext.P10 Scene Mahazar showing the place of occurrence. A perusal of Ext.P10 would go to show that it is a document prepared without any responsibility. It does not show who has shown the place of occurrence to PW5. PW5 does not have a case that he has witnessed the occurrence. It is stated as the last sentence in Ext.P10 that it was prepared in the presence of witnesses. But, no witnesses are shown in this document. PW5, while he was in the witness box, admitted that Ext.P10 is silent as to who had shown the place of occurrence and no witnesses had signed in it. Therefore, no sanctity could be attached to Ext.P10 claimed to have prepared by PW5 as showing the place of occurrence. 9. In **D.K.Basu v. State of W.B. (A.I.R.1997 SC 610),** the Honourable Supreme Court issued the following directions for compliance in respect of arrest of a person. CRA 2295/2006 12 “That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.” Even though the prosecution claimed that they have complied with the first direction issued by the Honourable CRA 2295/2006 13 Supreme Court, they have no case that they have complied with the second direction. No arrest notices have been produced. The prosecution does not have a case also that such arrest notices were prepared and served in this case. These are all matters creating doubt with regard to the claim of the prosecution that the Detecting Officer arrested the appellants with the contraband items from the place claimed by the prosecution. 10. 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 CRA 2295/2006 14 sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” Section 50 of the Abkari Act thus mandates that investigation into the offence shall be completed without delay. As soon as the investigation is completed, the Abkari Officer has to forward the report in accordance with Subsection (2) of Section 173 of Cr.P.C. The alleged occurrence in this case had taken place on 22.11.2002. The investigation of the case had been conducted by PWs.4 and 5. PW4 questioned the witnesses on 30.10.2003 and on 20.12.2003. PW5 questioned the witnesses on 27.1.2005 and submitted the Final Report before the court on 8.2.2005. The reason for the delay thus occurred in commencing, conducting and completing the investigation was not explained by the Investigating Officers before the court. Therefore, the mandate of Section 50 of the Abkari Act that every investigation into the offence under that Act CRA 2295/2006 15 shall be completed without unnecessary delay has not been complied with by the investigating agency in this case. What was the reason? No explanation was forthcoming from any of the official witnesses examined in this case. 11. The right to a speedy trial is a constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077)]** . In the case on hand, the right to a speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. When all these facts are considered, this Court is of the view that the appellants are entitled, at least, to the benefit of doubt. 12. For the foregoing reasons, the conviction and sentence passed against the appellants are liable to be set aside. They are entitled to an order of acquittal of the offence under Section 8(1) and (2) of the Abkari Act. CRA 2295/2006 16 13. In the result, the conviction and sentence passed against the appellants are set aside. They are acquitted of the offence under Section 8(1) and (2) of the Abkari Act. They are set at liberty. The bail bonds executed by them shall stand cancelled. This appeal is allowed. ## **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA 2295/2006 17