M.J. Thampi v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 11TH DAY OF OCTOBER 2018 / 19TH ASWINA, 1940 CRL.A.No. 2132 of 2005 AGAINST THE JUDGMENT IN SC 218/2005 of ADDL. SESSIONS COURT (ADHOC-I), KOTTAYAM DATED 28-11-2005 ## APPELLANT/ACCUSED: M.J.THAMPI, S/O.JOHN, MANATHOOR BHAGOM, PIZHAKUKARA,, RAMAPURAM VILLAGE, MEENACHIL TALUK. BY ADV. SRI.S.PRASANTH ## RESPONDENT/COMPLAINANT: STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ## OTHER PRESENT: SMT REHANA -PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.09.2018, THE COURT ON 11.10.2018 PASSED THE FOLLOWING: ## **JUDGMENT** The appellant is the accused in SC No. 218 of 2005 on the file of the Additional Sessions Judge (Adhoc)-I, Kottayam for offences punishable under Sections 8(i) and (ii) of the Abkari Act. The case Crl.Appeal No. 2132/2005 -2- was taken cognizance by the court below on the basis of the charge sheet filed by the Excise Circle Inspector, Excise Range, Pala in Crime No. 15 of 2003. 2. The case of the prosecution is that on 17.12.2003, at about 6.30 p.m., the accused was found carrying 52 plastic packets, each containing 150 ml. of arrack at the road leading to Pattathilparambu from Pallikavala at Manathoor and thereby committed the aforesaid offences. 3. The accused pleaded not guilty to the charges framed against him and he faced the trial. On the side of prosecution, PWs 1 to 5 were examined and Exts.P1 to P6 were marked. MO1 to MO4 series were also marked. On the side of defence, Dws 1 and 2 were examined and Exts. D1 to D3 were marked. After the closure of the prosecution evidence, the accused was examined under Section 313 Cr.P.C. 4. According to the prosecution case, while the then Excise Inspector of Pala was conducting a patrol duty in and around the Ramapuram Village proceeded to Pattathilparambu road, reached near the house of Velilkkath Appachan at about 6.30 p.m., and found the accused walking across them carrying a plastic bag in his hand. On seeing the Excise Officials, he look perplexed and thereby the bag carried in the hands of the accused was examined in the presence of Crl.Appeal No. 2132/2005 -3- witnesses who were available at the spot. On verification, it is found that the plastic sachets containing liquid kept in the bag. On suspicion, one of the bags were opened, tasted a small quantity of the liquid and found that it was arrack. The remaining five more packets were also opened, tasted and found that it was arrack. He poured the liquid from the open packet to a plastic bottle of one litre. All other packets were also similar in nature and character and therefore, they were taken to custody. Then he arrested the accused, took 200 ml in one 375 ml. bottle from the bottle where the liquid collected from the open sachets for the purpose of sample. He affixed label on both bottles after obtaining signatures of the accused, witnesses and himself and sealed the bottles. The remaining unopened packets were also sealed in the bag itself by affixing label on the plastic bag. Thereafter, the appellant was booked under the aforesaid offences. 5. The learned Sessions Judge, after trial, as per judgment dated 28.11.2005 found the appellant guilty of the offences and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- and in default to pay the fine, to undergo rigorous imprisonment for three months. 6. The learned counsel for the appellant contended that the learned Sessions Judge failed to understand that the non-mention of the Crl.Appeal No. 2132/2005 -4- assault of the accused by the Excise Officials before the court was due to the fear of Excise Officials. Moreover, the accused was in judicial custody for 48 days and there was no sign of any violence on his body. It is also contended that the mandatory rules of sampling were not done by the Excise Officials and it is not stated in the mahazar prepared by them. In fact, no respectable witnesses from the locality was selected by the Excise officials to witness the seizure and sampling of the contraband articles. The court below ought not have accepted the uncorroborated testimony of PW1, who was the Detecting Officer in the case. 7. The Officer who detected the offence was examined as PW1. PWs 2 and 3 are the two attesting witnesses to the Seizure Mahazar. PW4 is the Village Officer. PW5 is the Circle Inspector who conducted further investigation and laid charge against the accused. Ext.P1 is the Seizure Mahazar. Ext.P2 is the occurrence report. Ext.P3 is the scene plan. Ext.P4 is the Chemical Analysis report. Exts. P5 and P6 are statement of PWs 2 and 3. MO1 series are the plastic sachets containing liquid. MO2 is a plastic bottle containing liquid in it. MO3 is a plastic bag. MO4 series are 6 empty plastic sachets. 8. The main argument advanced by the learned counsel for the appellant is that the samples taken were not properly taken and sealed., Moreover, no forwarding note was marked in this case to enable the Crl.Appeal No. 2132/2005 -5- Court to find that those samples were taken properly and forwarded to the Chemical Analysis Laboratory. 9. The accused denied the allegations levelled against him and pleaded innocence. According to him, he has been falsely implicated in the case on suspicion that he is engaged in the sale of arrack. While he was at the courtyard of the Kizhakkevelikkakath Pappachan, some of the Excise Officials reached there in civil dress, caught hold of him, beat him and took him forcefully in a van and then to the Excise Office. He shouted him that he is Muloor Thampi and to strengthen the said case, he examined himself as DW1. DW2 was also examined and Exts.D1 to D3 were also marked. Ext.D1 is the complaint allegedly sent by him to the Commissioner of Excise, Kottayam. D2 and D3 are the postal receipts and acknowledgment card. 10. The appellant has not made any complaint when he was produced before the Magistrate and even at the time of recording of 313 statement also, he has not made any such allegations against the Excise Officials and after getting out of the custody, he made all the allegations against the Excise Officials. PW3 and PW5 visited the Excise Office after the arrest of the appellant. But even at that time also, the appellant has not informed this fact to PWs 3 and 5. The evidence adduced by PWs 1 and 2 is to the effect that the Abkari Officials came in a civil dress in the Crl.Appeal No. 2132/2005 -6- courtyard of DW2 and had taken the appellant in custody. It is very important to note that even if the appellant was assaulted by the Excise Officials, he would have revealed the fact to the Magistrate when he was produced before the Magistrate after the arrest. Even at the time of remand also, he has not sought for any medical aid. The attempt of the appellant is to prove that there was some enmity on the side of the Excise Officials towards the appellant; but he failed to establish the same. PW1 has deposed before the Court that he has affixed label at the spot after getting the signature of the witnesses and the appellant. Ext.P1 is the seizure Mahasar, which does not contain the details regarding the affixure of the seal on the label with signature. On verification of Ext.P1 statement, it was revealed that PW1 has not given any details regarding the affixure of the label along with the signature on the bags and bottles. In stead of that, he has stated that he has complied with all the formalities, sealed the bottles and affixed the label. He has narrated the facts while he was in the box. In fact, MO2 bottles and Mo3 plastic bag contain the labels. The court below has found that there was no dissimilarity in the signatures found on the labels. Even at the time of argument, the appellant's counsel has assailed the procedure adopted while taking the sample of the contraband articles alleged to have seized from the custody of the appellant. It is true that some of Crl.Appeal No. 2132/2005 -7- the sachets were opened and the liquid contained in it was poured into another bottle and sampled it. But the learned counsel had no defence that the bag contained a label and the label was re-affixed on the plastic bags without any objection. It is also found that the signature in the labels with that of the disputed signatures of PW 2 and 3 also found no dissimilarity rather similarity. PW3 had admitted his signature in the label affixed on MO2, but he failed to identify his signature in MO3 label. The court below also observed that the signatures of the witnesses in the summons and in the deposition and the disputed signatures are one and same. Therefore, it is proved that Mos 1 to 3 labels contain the signatures of PWs 2 and 3 and the signature of the appellant is also endorsed therein. 11. The learned counsel for the appellant has pointed out that the prosecution has not produced the forwarding note and it is not available in the file also. In this connection, he has also placed reliance on _**Valsala v. State of Kerala**_ [1993 (2) KLT 550 (SC)] in which it is held that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. In _**Sasidharan v. State of Kerala**_ (Judgment dated 01.01.2007 passed by this Court in Crl.Appeal No. 1128 of 2006), it is held thus: Crl.Appeal No. 2132/2005 -8- “There is also no evidence before court to show the date of despatch of the sample. In a case of this nature, the prosecution can succeed only if it establishes that the sample which had changed several hands had ultimately reached the hands of the chemical examiner in a tamper proof condition and that it was the same sample which was drawn from the contraband liquor allegedly seized from the accused. There is absolutely no link evidence to establish that a sample that a sample was drawn from the jerry can allegedly seized from the accused and that the said sample reached the hands of the Chemical Analyst in a tamper proof condition. The conviction recorded and the sentence passed by the court below overlooking the above vital aspects cannot be sustained and are accordingly dislodged.” The same decision has been reiterated in _**State of Rajasthan v. Daulath Ram**_ (AIR 1980 SC 1314). 12. In _**Krishnamma v. State of Kerala**_ [Judgment dated 09.10.2015 in Crl.Appeal No. 214 of 2006], it is held that 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 is not provided in the Original Forwarding Note. 13. Unless and until the Forwarding Note is produced, it is difficult to find out that the seal affixed on the forwarding note is one and the Crl.Appeal No. 2132/2005 -9- same and therefore, there is nothing to show that the alleged sample taken from the place of occurrence was the sample which had been forwarded to the Laboratory. Further, in the present case the Detecting Officer as well as the Investigating Officer are one and the same. The prosecution has failed to succeed in proving the guilt of the accused beyond reasonable doubt. For the above reasons, this appeal is allowed and the conviction and sentence passed by the court below are set aside. The appellant is set at liberty forthwith. sd/- **ANNIE JOHN, JUDGE.** _Rv_ Crl.Appeal No. 2132/2005 -10-