Mansoor and Surendran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 8TH DAY OF JULY 2016/17TH ASHADHA, 1938 Crl.Rev.Pet.No. 2697 of 2009 --------------------------------- AGAINST THE JUDGMENT IN CRA 728/2008 of SESSIONS COURT,KOZHIKODE DATED 26-02-2009 JUDGMENT IN SC 209/2004 of PRL.ASST. SESSIONS COURT, KOZHIKODE DATED 30-07-2008 REVISION PETITIONERS/APPELLANTS/ACCUSED 1 AND 2: --------------------------------------------------------------- 1. MANSOOR, AGED 26 YEARS, S/O.IMBICHIMOIDEEN, CHERATHODIVAYAL, AVIDANALLOR AMSOM, POONATH DESOM, KOILANDY TALUK, KOZHIKODE DISTRICT. 2. SURENDRAN, AGED 31 YEARS, - S/O.MADHAVAN, VILAYATTERI VEETTIL HOUSE, PANANGAD AMSOM DESOM, KANNADIPOYIL, KOILANDY TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.K.B.ARUNKUMAR RESPONDENT/RESPONDENT/STATE & COMPLAINANT: --------------------------------------------- STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, KUNNAMANGALAM, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 08-07-2016, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. R.P. No. 2697 of 2009 = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of July, 2016 ## **ORDER** The petitioners were convicted by the trial court for the offence under Section 8(1) and (2) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for two years each and to pay a fine of Rs.1,00,000/- each and, in default of payment of fine, to undergo imprisonment for six months each. The petitioners preferred appeal against the convictions and sentences passed by the trial court. The appellate court confirmed the convictions and sentences passed by the trial court. Challenging the convictions and sentences, the petitioners have preferred this revision petition. 2. Heard the learned counsel appearing for the petitioners and the learned Public Prosecutor appearing for CRRP 2697/2009 2 the respondent. 3. The prosecution case is that the petitioners were found in possession of 210 litres of arrack in six 35 litre jerrycans kept in an autorickshaw at about 9.30 p.m. on 22.10.2002 at Moozhikkal in Chelavoor. PW1, the Preventive Officer attached to the Intelligence Squad, Kozhikode, had detected the offence. He had arrested the petitioners then and there. Ext.P4 is the Search List prepared by him. PW1 had drawn 375 ml. each of arrack as sample from each of the six jerrycans in six separate 375 ml. bottles. The sample bottles were sealed. The contraband including the samples, the autorickshaw in which the contraband was carried and the key of the autorickshaw were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. The petitioners, contraband including samples and the records were produced at the Excise Range Office, Kunnamangalam, on the next day. A case had been registered at that Range CRRP 2697/2009 3 Office in respect of the occurrence. Ext.P7 is the Crime and Occurrence Report thus prepared. The petitioners, contraband including samples and the records were produced before the Judicial First Class Magistrate's Court-I, Kozhikode. Exts.P2 and P2(a) are the Arrest Memos. Ext.P3 is a Body Mahazar. Ext.P5 is a copy of the Forwarding Note. Ext.P9 is the List of Property. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode, and Ext.P8 is the Site Plan showing the place of occurrence. The investigation of the case was conducted by PW3, Excise Inspector, Excise Range Office, Kunnamangalam. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. 4. Learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kozhikode, and, from there, it was made over to CRRP 2697/2009 4 the Principal Assistant Sessions Court, Kozhikode. The Principal Assistant Sessions Court, Kozhikode, framed a charge against the petitioners alleging the offence under Section 8(1) and (2) of the Abkari Act. The petitioners pleaded not guilty of the charge. The prosecution examined PWs.1 to 3 and marked Exts.P1 to P9 and MO.1 series on their side. The petitioners were examined under Section 313 of Cr.P.C. They denied the incriminating circumstances shown against them. According to them, they were falsely implicated in this case. The defence had not adduced any evidence. The trial court, after considering the matter, found the petitioners guilty of the offence under Section 8 (1) and (2) of the Abkari Act and convicted them thereunder. They were heard on the question of sentence and imposed the sentences on them. The appellate court confirmed the convictions and sentences imposed by the trial court. 5. The trial court as well as the appellate court relied CRRP 2697/2009 5 on the evidence adduced by the prosecution for convicting the petitioners for the offence under Section 8(1) and (2) of the Abkari Act. It is the case of the prosecution that the petitioners were found in possession of 210 litres of arrack in six jerrycans at about 9.30 p.m. on 22.10.2002 and the petitioners were arrested and the contraband was seized by PW1 under Ext.P1 Seizure Mahazar. Even though the seizure was effected, as claimed by the prosecution at about 9.30 p.m. on 22.10.2002, they were produced before the court only on 24.10.2002. It can be seen from Ext.P9 List of Property that the contraband including samples was produced before the court only on 24.10.2002. None of the official witnesses examined by the prosecution explained any reason for the delay that occurred in producing the properties including samples before the court. It can be seen from the documents produced before the court that some of them were produced on 23.10.2002. Then, a question arises. What was the special reason that CRRP 2697/2009 6 prevented the investigating agency from producing the contraband including samples before the court along with those documents? No explanation is available for this. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, none of the official witnesses offered any reason explaining the delay in producing the properties before the court. Therefore, this unexplained delay that occurred in producing the properties before the court is fatal to the prosecution case. 6. Where the properties were kept after they were seized by PW1 at about 9.30 p.m. on 22.10.2002? The evidence of PW1 shows that the properties were produced at CRRP 2697/2009 7 the Excise Range Office, Kunnamangalam. When? PW2, the Excise Guard claimed to have accompanied PW1 at the time of detecting the offence, deposed before the court that they were produced at the Excise Range Office only on the next day. Then, where the properties were kept till that time? Whether they were under safe custody? No answers are forthcoming for these questions. Where the properties were kept after receiving them at the Excise Range Office, Kunnamangalam, till they were produced before the court on 24.10.2002? Whether they were under safe custody? No answers are forthcoming for these questions as well. In fact, there is absolutely no evidence to show as to whether the properties were kept under safe custody after they were seized by PW1 and till they were produced before the court on 24.10.2002. There is also no evidence as to under whose custody the properties were kept during the said period. Who had handed over the properties to the Excise Range Office, Kunnamangalam? Who had produced the CRRP 2697/2009 8 properties before the court from the Excise Range Office, Kunnamangalam? No answers are there for these questions as well. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single 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 13.9.98 (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, 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 petitioners. 7. Ext.P6 is the Certificate of Chemical Analysis issued from the Regional Chemical Examiner's Laboratory, Kozhikode. It is reported in this document that ethyl alcohol was detected in all the samples. The percent by volume of CRRP 2697/2009 9 ethyl alcohol in different samples is also reported. It is certified in Ext.P6 that the seals on the bottles were intact and found tallied with the sample seal provided by the court. Which sample seal was used for comparing the seals affixed on the bottles containing samples? PW1 had drawn samples of the contraband allegedly seized from the petitioners. It is noted in Ext.P1 Seizure Mahazar and in Ext.P9 List of Property that the sample bottles were sealed. The sample impression of the seal affixed on the sample bottles is affixed in Ext.P1 Seizure Mahazar. PWs.1 and 2 deposed also that the samples so drawn by PW1 were sealed. Ext.P5 is a copy of the Forwarding Note sent to the Chemical Examiner for subjecting the samples to chemical analysis. It can be seen that a sample seal as seen in Ext.P1 Seizure Mahazar is affixed in this document. It can also be seen from Ext.P5 that a sample seal of the court is affixed below the space provided for affixing sample seal. Learned Magistrate has countersigned also in this document. CRRP 2697/2009 10 Therefore, in Ext.P5, two specimen seals are seen - sample seal of the court and the sample seal of the Detecting Officer. The certification made in Ext.P6 shows that the seals on the sample bottles were found tallied with the sample seal provided by the court and not with the sample seal provided by the investigating agency. The sample seal provided by the court is also available along with the sample seal provided by the investigating agency in Ext.P5. In view of these facts, it cannot be concluded that the Chemical Examiner, in fact, compared the seals appeared on the sample bottles with the sample seal provided by the investigating agency. Going by the statement made in Ext.P6, more chance is for the comparison of the seals appeared on the sample bottles with the specimen seal provided from the court. In view of these facts, there is no assurance that the samples of the contraband allegedly seized by PW1 from the petitioners had, in fact, subjected to chemical analysis by the Chemical Examiner. Such an CRRP 2697/2009 11 assurance is possible only when the sample of the seals affixed on the sample bottles is provided to the Chemical Examiner for comparison and the Chemical Examiner really compared the seals on the sample bottles with such a sample seal provided by the investigating agency. 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 petitioners in this case. 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. CRRP 2697/2009 12 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.” The Division Bench of this Court in **Ravi v. State of Kerala (supra)** 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, in the case on hand, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the petitioners to the benefit of doubt. 8. The courts below relied on the evidence of official witnesses PWs.1 and 2 for finding the petitioners guilty of CRRP 2697/2009 13 the offence under Section 8(1) and (2) of the Abkari Act. It is the definite case of the prosecution that the detection of the offence was made by the excise party and the arrest of the petitioners was effected and the contraband was seized in the presence of two independent witnesses named in Ext.P1 Seizure Mahazar. They were cited as CWs.3 and 4 by the prosecution for proving their case. CW3 could not be examined as he was no more. But, the proceedings of the trial court shows that even though CW4 was present in the court for examination, he was not examined by the prosecution. Why? In the facts and circumstances of this case, CW4 was a material witness on whom the prosecution could have relied on for proving their case. But, he was withheld. The non-examination of CW4 leads to an adverse inference against the prosecution. Had he been examined, he would not have vouched for or supported the prosecution and his case would have been something else. This is also one of the factors for doubting the prosecution case. Of CRRP 2697/2009 14 course, there is no legal impediment in relying on the evidence given by the official witnesses for proving the prosecution case. But, in the facts and circumstances of this case including the facts already adverted to, placing reliance on the official witnesses PWs.1 and 2 may not be safe for entering a conviction against the petitioners. 9. Some more facts are also to be considered. PW3, the Investigating Officer, had not gone to the place of occurrence during the course of his investigation. He had not even attempted to see the autorickshaw allegedly involved in the occurrence. It is the prosecution case that Ext.P8 Site Plan prepared by the Village Officer, Chelavoor, shows the place of occurrence. But, the Village Officer was not cited or examined as a witness. There is no valid explanation for doing so. Similarly, the officer who had prepared Ext.P7 Crime and Occurrence Report was not cited or examined as a witness in this case. Moreover, the Investigating Officer had not investigated into the source of CRRP 2697/2009 15 the arrack seized by PW1. No Scene Mahazar is prepared in this case. It is the case of PW1 that he had prepared Ext.P1 Seizure Mahazar and Ext.P4 Search List using the street light. The Investigating Officer admitted that such a case has not been stated to him by PW1 while he was questioned. Moreover, a perusal of Exts.P1 and P4 would go to show that PW1 may not be able to prepare such documents at the scene of occurrence using the street light during night at about 10.00 p.m. When all the foregoing facts are considered, it is unsafe to convict the petitioners for a serious offence under Section 8(1) and (2) of the Abkari Act. The petitioners, at least, are entitled to the benefit of doubt. 10. For the foregoing reasons, the convictions and sentences passed against the petitioners are liable to be set aside. They are entitled to an order of acquittal of the offence alleged against them. 11. In the result, the convictions and sentences passed CRRP 2697/2009 16 by the trial court and confirmed by the appellate court against the petitioners are set aside. The petitioners are acquitted of the offence under Section 8(1) and (2) of the Abkari Act. They are set at liberty. The bail bond executed by the petitioners shall stand cancelled. The amounts, if any, deposited by the petitioners as directed by this Court shall be returned to them. This Criminal Revision Petition is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks/kns True copy P.S. (Hr.Gr.)To Judge CRRP 2697/2009 17