Mohanan v. State of Kerala

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN THURSDAY, THE 10TH DAY OF DECEMBER 2015/19TH AGRAHAYANA, 1937 CRL.A.No. 481 of 2006 ( ) ---------------------AGAINST THE JUDGMENT IN SC 547/2001 of ADDL.SESSIONS COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA. APPELLANT(S)/ACCUSED: --------------------- MOHANAN, S/O. MUTHAN, PULLUVILA PUTHEN VEEDU, PARASSUVAIKKAL DESOM, NEYYATTINKARA TALUK. BY ADV. SRI.G.SUDHEER RESPONDENT(S).COMPLAINANT: -------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. S. HYMA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - Crl.Appeal. No. 481 of 2006 - - - - - - - - - - - - - - - - - Dated this the 10[th] day of December, 2015. ## JUDGMENT The accused was prosecuted for the offence punishable under Section 58 of the Abkari Act and he was found guilty. He was, therefore, convicted and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs.1,00,000/-, in default, to undergo rigorous imprisonment for six months. 2. P.W.5, the Excise Inspector at the relevant time, and P.W.3, Preventive Officer, on 18.11.1997 along with a few other officers, were on routine patrol duty. When they reached Idichakka Plamoodu junction, they got reliable information that the accused was keeping spirit in his house. P.W.5 claims to have prepared search memo and then conducted a search of the house of the accused. The house had been left open and there was nobody in the house. The room which has entry from the varanda was seen to contain 14 cans of 35 litres each 2 Crl.Appeal.481/2006. with full of some sort of liquid. Feeling suspicious, each of the cans were opened and by taste and smell it was revealed that the liquid was spirit. Ext.P5 is the search list prepared by P.W.5. Certain documents like passbook, identity cards etc were also seized. Ext.P1 is the mahazar prepared at the spot. It contains the signature of P.W.5 and the witnesses. They then returned to the office and registered crime as per Ext.P6 occurrence report. Documents and the articles seized were produced before court as per Ext.P7 list of properties. 3. Investigation into the case was done by P.W.7. It is worthwhile to mention that since sample had not been taken by the officers who detected the contraband article, it would appear that a request was made to the court to take samples and P.W.6 deposed that she had taken sample as ordered by the Judicial First Class Magistrate concerned. 14 samples sere taken and they were sent for chemical examination. Crl.Appeal.481/2006. 3 4. P.W.7, the Investigating Officer obtained chemical analysis report, recorded statements of witnesses, completed investigation and laid charge before court. 5. The court, before which final report was laid, took cognizance of the offence. Finding that the offence is exclusively triable by a court of Sessions, the said court committed the case to Sessions Court, Thiruvananthapuram under Section 209 Cr.P.C. The said court made over the case to Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara for trial and disposal. 6. The latter court, on receipt of records and on appearance of the accused framed charge for the offence punishable under Section 58 of the Abkari Act. To the charge, the accused pleaded not guilty and claimed to be tried. The prosecution therefore had P.Ws.1 to 7 examined and had Exts.P1 to P9 marked. M.O.1 was got identified and marked. After the close of the prosecution evidence, the accused was Crl.Appeal.481/2006. 4 questioned under Section 313 Cr.P.C., wherein he denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. Finding that the accused could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence. 7. Probably impressed by the evidence of P.Ws. 3 and 5 and also the prompt production of the articles and documents before court, the court below was inclined to accept the prosecution version and found the accused guilty. Conviction and sentence followed. 8. Assailing the conviction and sentence, it was pointed out that on the very face of it, the conviction cannot stand. It is contended that the forwarding note containing the specimen seal was not produced or marked in the case. It is also contended that there is no evidence as to who had affixed the seal on the samples and that itself is sufficient to throw Crl.Appeal.481/2006. 5 out the prosecution case. 9. It is also pointed out that Ext.P7, the thondi list, does not indicate that the articles seized were sealed as claimed by P.W.5. Ext.P9 thondi register in which the relevant entries have been made also does not indicate that the cans which were seized were sealed. The result is that, according to learned counsel, there is no guarantee that the contraband articles produced were those seized from the house of the accused. 10. Learned Public Prosecutor tried to sustain the conviction based on the evidence of P.Ws.3 and 5 and also the prompt production of the articles and documents before court. Learned Public Prosecutor pointed out that the accused was not available and hence he was not arrested from the spot. Sampling was done at the court and that is spoken to by P.W.6. It is contended that all procedural formalities have been complied with and no interference is called for with the Crl.Appeal.481/2006. 6 ## conviction and sentence. 11. The detection of the contraband article in the house of the accused is spoken to by P.Ws. 3 and 5, among whom P.W.5 was the Excise Inspector and P.W.3 was the Preventive Officer. Both of them say that they got reliable information that the accused was keeping spirit in his house. Their evidence is to the effect that after preparing search memo, the house was searched and 14 cans, each having the capacity of 35 litres, were seized with liquid in them. They say that by taste and smell, they identified the contraband article as spirit. Both P.Ws. 3 and 5 say that all the 14 cans were sealed and labelled and the label contained the signature of the witnesses and P.W.5. 12. It is significant to note that neither P.W.3 nor P.W.5 say that any sample was taken at the spot or from the office after it was brought to their office. However, the evidence shows that there was no one in the house at the time Crl.Appeal.481/2006. 7 of search and Ext.P1 mahazar was prepared at the spot. 13. It is true that Ext.P1 gave a narration of what had transpired in the house at the relevant time. Being a contemporaneous document, there is no need to doubt its contents. Moreover, it is seen produced on the very next day of the incident so also the occurrence report. 14. If that alone was necessary in law to find against the accused, prosecution would have been on strong grounds. Unfortunately it is not so. As already stated, neither P.W.5 nor P.W.3 did not speak about having taken the sample. There is no evidence as to who gave requisition to the court to take sample. However, it is seen that P.W.6, the thondi clerk took the sample. One may notice here that Ext.P7 is the property list filed by the prosecution agency before the court below. That unfortunately does not show that 14 cans were sealed. The entries in Ext.P7 thondi list also does not indicate that 14 cans were sealed. So that the claim made by P.Ws.5 8 Crl.Appeal.481/2006. and 3 as narrated in Ext.P1 that the cans were sealed at the spot is not seen reflected in the thondi list. No reasons are given for this omission. 15. P.W.6, the thondi clerk claims to have taken sample. What P.W.6 has stated is that she took 14 samples and handed over the same to the Excise Guard. P.W.6 of course would say that it was under the orders of the learned Magistrate. 16. It is significant to notice that P.W.6 had no case that she had affixed any seal on the samples. According to her, as soon as she took samples, she handed it over to the Excise Guard to be taken to the Laboratory. None of the witnesses examined on behalf of the prosecution speaks about any seal having been affixed. 17. It is in the above context that the non-production of the forwarding note containing specimen seal assumes importance. Crl.Appeal.481/2006. 9 ## 18. In the decision reported in Joseph v State of Kerala (2009(4) KHC 537), it was observed as follows: “18. Yet another infirmity in the prosecution case is that there is no request forwarding note either produced or marked to indicate that a request was made to the Magistrate to send the sample bottle to the chemical examiner for analysis. P.W.6 who conducted the investigation, has no case that he had made any such request or had filed any forwarding note. Likewise, P.W.1 also has no case that he had made a request to the Magistrate to send the sample bottle to the chemical examiner. Ext.P4 certificate of chemical analysis dated 24.11.1997 is relied on by the prosecution to show that the sample bottle was duly despatched to the chemical examiner for analysis. In the absence of any forwarding note or requisition, it is not explained as to how the Magistrate forwarded a sample bottle to the chemical examiner as per his covering letter dated 19.8.1997 referred to in Ext.P4 certificate. Even the office copy of the covering letter has not been produced. The thondi section clerk who was the custodian of the properties before the Magistrate, was not examined to prove matters such as the date of receipt of the property Crl.Appeal.481/2006. 10 before the Magistrate, the condition in which those properties were received in court including the fact whether a sample bottle was received and if so, whether the seals if any on such bottle were in tact, the date of despatch of the sample to the chemical examiner and the nature of the custody of the sample bottle until then. The prosecution can succeed in securing a conviction against the appellant only if it is shown that the sample which was subjected to chemical analysis as evidenced by Ext.P4 certificate was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly held by the accused and which after change of hands, eventually reached the hands of the chemical examiner.” 19. On a reading of the above decision, it is clear that production of forwarding note containing specimen seal is not an empty formality and it has a purpose to serve. Apart from the fact that there is no forwarding note produced, none of the witnesses have spoken about any seal having been affixed on the sample. Ext. P8 is the chemical analysis report. That shows that the seal on the bottles were in tact and tallied Crl.Appeal.481/2006. 11 with the sample seal provided. There is no evidence as to who had affixed the seal and who had provided the sample seal. Therefore, a reasonable doubt is created regarding the samples sent for analysis. There is no guarantee that the samples were taken from the cans seized from the house of the accused. If that be so, the conviction cannot stand. For the above reasons, this Court is unable to uphold the conviction of the accused by the lower court. Hence this appeal is allowed, the conviction and sentence passed by the trial court are set aside and it is held that the prosecution has not succeeded in proving the guilt of the accused beyond reasonable doubt. The accused is acquitted of the charges levelled against him. His bail bond shall stand cancelled and he is set at liberty. P. BHAVADASAN, JUDGE sb.