Murali, S/O Mundan Pachelil Veedu v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 2[ND] DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 CRL.A NO. 1373 OF 2007 [AGAINST THE JUDGMENT DATED 26.6.2007 IN SC 424/2006 OF ADDITIONAL SESSIONS COURT (ADHOC-II), ERNAKULAM ## APPELLANT/ACCUSED: MURALI, S/O.MUNDAN PACHELIL VEEDU, MUDAVOOR KARA, VELLOORKUNNAM-5. BY ADV SRI.P.V.ELIAS ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING, ASST.EXCISE INSPECTOR, EXCISE RANGE, MUVATTUPUZHA. BY ADV RANJIT GEORGE, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2022, THE COURT ON 2.2.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.1373 of 2007 2 ## JUDGMENT The appellant is the accused in S.C.No. 424/2006 on the file of the Court of the Additional Sessions Judge (Adhoc-II), Ernakulam. The aforesaid case arises from Crime No.4/2005 of Muvattupuzha Excise Range which is registered against the petitioner for the offences punishable under Section 55(a) of the Abkari Act. 2. The prosecution case against the appellant is that on 6.8.2005, while the Excise party was checking vehicles near Mudavoor Church at MuvattupuzhaPattimattom public road, the appellant was found riding a Bajaj scooter bearing registration No.KEE/5456. Even though, the Excise party asked him to stop the vehicle, he did not do so and proceeded with the vehicle. The Excise team chased him and when the vehicle reached near Thavalakavala junction, the appellant abandoned the scooter and escaped from the place. When the scooter was examined, 5 bottles of Indian Made Foreign Liquor containing 1 litre each Crl.Appeal No.1373 of 2007 3 was found. Accordingly, the vehicle and the articles were seized by preparing seizure mahazar in the presence of independent witnesses. 3. On the basis of the same, the Excise Inspector, Muvattupuzha registered Crime No.4/2005 and investigation conducted. Upon completion of the investigation, final report was submitted before the Judicial First Class Magistrate Court, Muvattupuzha where it was taken into file as C.P.No.4/2006. Upon completing the statutory formalities, the aforesaid case was committed to the Sessions Court and the same was tried as S.C.No.424/2006. 4. In order to prove the prosecution case, they have examined PWs.1 to 7, marked Exts. P1 to P10 and identified material objects 1 and 2. After closing of prosecution evidence, the appellant was examined under Section 313 of the Cr.PC. During the course of which, the incriminating materials brought out in the trial were put to him. He denied the same and pleaded innocence. No defence evidence was adduced on his Crl.Appeal No.1373 of 2007 4 side. After examining the materials brought out by the prosecution during the course of trial, the Sessions Court found that, the appellant is not guilty of the offence under Section 55(a) of the Abkari Act. However, the Sessions Court found that the acts committed by the appellant attracts the offence under Section 63 of the Abkari Act and accordingly he was sentenced to pay a fine of Rs.5,000/- with a default sentence of simple imprisonment for a period of three months. This appeal is filed by the appellant challenging the aforesaid conviction and sentence. 5. As there is no representation for the appellant for the last so many postings, this Court as per the order dated 12.11.2021 appointed Advocate Aiswarya Ann Jacob as Amicus Curiae to assist the Court. Heard the learned Amicus Curiae and Sri. Ranjit George, the learned Public Prosecutor for the State. Crl.Appeal No.1373 of 2007 5 6. The only question that arises here is as to whether the appellant is guilty of the offence under Section 63 of the Abkari Act. The Sessions Court found that, the appellant is guilty as the Court was convinced on the basis of the materials available on record that, the appellant was found in possession of 5 litres of Indian Made Foreign Liquor which is in excess of the maximum quantity a person can possess as per the relevant rules. Therefore, the basic question that arises is as to whether the finding entered into by the Sessions Court that the appellant found in possession of 5 litres of Indian Made Foreign Liquor is sustainable or not ? PW1 is the Assistant Excise Inspector, Muvattupuzha Excise Office who detected the offence in this case. He deposed that, on 6.8.2005, while he along with the subordinate officers were conducting vehicle inspection near Mudavoor Church on MuvattupuzhaPattimattom road a scooter bearing registration No.KEE/5456 which was being driven by the appellant was found approaching the Excise party. When PW1 Crl.Appeal No.1373 of 2007 6 required the rider of the scooter to stop the vehicle, he refused to do so and proceeded further by speeding away from the spot. The Excise party chased him, during the course of which, the rider of the scooter abandoned the same and fled away from the place. On verifying the scooter, they found 5 litres of Indian Made Foreign Liquor having 1 litres each. Immediately, the seizure mahazar was prepared, the bottles were opened in the presence of witnesses, sample of 200 ml. each were taken from the said bottles and kept in sample bottles. The sample bottles were duly sealed, labelled and separately numbered. Thereafter, the thondi articles along with the records and scooter were entrusted with the Excise Inspector, Muvattupuzha who registered the case. 7. PWs.2 and 3 are the independent witnesses who attested Ext.P1 seizure mahazar. PW2 denied his signature in Ext.P1 seizure mahazar whereas PW3, even though admitted his signature in Ext.P1 seizure Crl.Appeal No.1373 of 2007 7 mahazar, denied the seizure of the contraband article from the scooter. Thus none of the aforesaid witnesses supported the prosecution and accordingly they were declared hostile. 8. PW4 is the Excise Inspector, Muvattupuzha who registered the crime in this case. He gave evidence in tune with the prosecution case and according to him, immediately upon getting possession of the articles, he produced the same before the court. PW5 is the Assistant Excise Inspector, Muvattupuzha who arrested the accused and prepared Ext.P7 arrest memo and immediately upon their arrest, Ext.P8 arrest intimation was also sent to one of the friends of the appellant. PW6 is the Village Officer, who prepared Ext.P9 site plan. PW7 is the Excise Inspector who investigated the case. As part of the investigation, he recorded the statements of the witnesses and the accused was identified by the said witnesses. Exhibit P10 is the Chemical Analysis report of the sample, Crl.Appeal No.1373 of 2007 8 which was marked through PW7. These are the evidences adduced by the prosecution in support of their case. 9. In Exhibit P10 which is the certificate of Chemical Analysis, it is specifically mentioned that, the liquid made available before them through 5 sealed bottles marked as A1 to E1 were identified as Indian Made Foreign Liquor. It is also stated that, the seals on the packets were intact and found tallied with the samples provided. Thus, it is evident from Ext.P10 that sample seals were provided along with the sample bottles which were found tallied by the chemical Analyst. However, the crucial question that arises is as to whether the prosecution is successful to show that the sample seal provided to the chemical Analyst is the very same seal which is affixed on the sample bottles. While considering the aforesaid question, the crucial aspect to be noted in this case is that, in order to establish the guilt of the appellant herein, the prosecution has an obligation to show the connection with the sample Crl.Appeal No.1373 of 2007 9 examined by the chemical analyst with the liquid collected from the petitioner herein. In Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569], the Hon’ble Supreme Court was pleased to observe as follows: _“The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case not different from failure to produce the seized sample itself. In the circumstances, the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related”._ When we apply the aforesaid principles in this case, it can be seen that, the available materials are not sufficient to connect the samples collected from the scooter which was found in possession of the appellant and the sample subjected to chemical analysis. It is also a well settled position of law that, in order to establish the connection between the same, the prosecution has to adduce evidence establishing each transactions took place in between the seizure of the articles and until the same was ultimately subjected to chemical analysis. In this Crl.Appeal No.1373 of 2007 10 case, Ext.P1 is the seizure mahazar which is the contemporaneous document prepared at the time of seizing the contraband articles. On going through Ext.P1, it can be seen that, even though the same contained the recitals as to the seizure of the articles and sampling thereof, it does not contain the impression of sample seals affixed on the samples collected at the time of seizure. Apart from the above, Ext.P6 is the forwarding note by which the samples were forwarded to the chemical examiner. It also does not contain the impression of a sample seal. It is to be noted that, in the format of forwarding note, a specific space is provided for forwarding the sample seal. Despite the same, the sample seal is not provided. ## 10. In Moothedath Sivadasan and Another v. State of Kerala [2021(1) KLT 744] , this Court considered the necessity to have specimen impression of seal on seizure mahazar. After elaborately considering various decisions on the point, it was categorically Crl.Appeal No.1373 of 2007 11 concluded that, the lack of specimen signature in seizure mahazar creates a shadow of doubt on the prosecution case, as it reflects the failure on the part of the prosecution in proving that the sample which was produced before the court is the very same sample which was collected from the appellant. In this case, the learned Public Prosecutor pointed out that, Ext.P2 thondi list contains the specimen of sample seals and it was contended that, the same amounts to compliance of the legal requirement. However, as far as Ext.P2 thondi list is concerned, it does not contain the signature of any independent witnesses. Moreover, the aforesaid document also do not contain the date on which the same was prepared. Exhibit P1 seizure mahazar being a contemporaneous document ought to have contained the specimen of the sample seals. The absence of the same in Ext.P1 is very crucial. Similarly, the absence of impression of specimen seal on Ext.P6 forwarding note is another lacuna in the prosecution case. In Unnikrishnan Nair v. State of Kerala [2020(4)KLT 376] , this Court Crl.Appeal No.1373 of 2007 12 considered the said question and arrived at a categorical finding that the absence of specimen impression of seal on the forwarding note is a crucial lacuna in the prosecution case. In this case, the aforesaid legal requirements is lacking. In Baburaj v. State of Kerala [2021(6)KHC 92] , this Court considered the question as to the necessity of strict compliance of the statutory requirements for holding an accused guilty of the offence punishable under the provisions of Abakari Act. After elaborately considering a large number of decisions of the Hon’ble Supreme Court, it was held that, since the provisions of Abkari Act is very stringent, the doctrine of substantial compliance of the legal requirements cannot be pressed into service and on the other hand, strict compliance is to be insisted upon. In such circumstances, the lack of impression of specimen seal on Ext.P1 seizure mahazar and Ext.P6 forwarding note are very fatal to the prosecution case. As mentioned above, the lack of the same, casts serious shadow of doubt on the prosecution case and Crl.Appeal No.1373 of 2007 13 in the light of the principles requiring strict compliance of the legal requirements in the matter of conviction of abkari offences, the only conclusion possible is to hold that the appellant is not guilty of the offence as alleged against him. In the result, this appeal is allowed. The conviction and sentence imposed upon the appellant as per the judgment dated 26.6.2007 in S.C.No.424/2006 by the Additional Sessions Court (Adhoc-II), Ernakulam is hereby set aside. The appellant is found not guilty of the offence and he is acquitted of the charges. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk