NARAYANAN S/O.KOCHU CHERUKKAN v. STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 23RD DAY OF SEPTEMBER 2020 / 1ST ASWINA, 1942** ## **CRL.A.No.1373 OF 2006** **AGAINST THE JUDGMENT IN SC 45/2004 DATED 22-06-2006 OF ADDITIONAL SESSIOINS COURT, FAST TRACK(ADHOC-I), ALAPPUZHA** **AGAINST THE ORDER IN CP 86/2003 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, KAYAMKULAM** ## **APPELLANT/ACCUSED:** **NARAYANAN S/O.KOCHU CHERUKKAN, CHIRAYIL VEEDU, PATHIYOOR PADINJARU MURI, PATHYOOR VILLAGE, KARTHIKAPPALLY TALUK.** **BY ADVS. SRI.R.GOPAN SRI.BASANT BALAJI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKLULAM.** **BY PUBLIC PROSECUTOR SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-09-2020, THE COURT ON 23-09-2020 DELIVERED THE FOLLOWING:** Crl.Appeal No. 1373 of 2006 2 ## **JUDGMENT** Appellant is the convict in S.C. No. 45/2004 of the Sessions Division, Alappuzha. By the judgment dated 22.06.2006 of the Additional Sessions Judge, Alappuzha, he stands convicted for offence punishable under Section 8(2) of the Abkari Act. The precise allegation against the appellant is that on 18.05.2001, at about 11.30 A.M., the Excise Inspector, Kayamkulam and party found him in front of the Sreeparvathy Temple, at Thachadi Junction on the Kareelakulangara-Chittankari road, in Pathiyoor Village, carrying 1500 ml of arrack. Thus he was arrested and removed from the spot after preparing a mahazar and collecting sample, in the presence of independent witnesses. On that basis Crime No. 11/2001 of Kayamkulam Excise Range was registered under Sections 8(1) and (2) of the Abkari Act and he was produced before the Court on the same day. 2. After investigation, a charge sheet was laid before the Judicial First Class Magistrate, Kayamkulam alleging offence punishable under Section 8(1) and (2) of Abkari Act, where the case was taken on file as C.P. No. 86 of 2003. As it is a case exclusively triable by a Sessions Court, after completing the Crl.Appeal No. 1373 of 2006 3 procedural formalities, the case was committed to the court of session. The learned Sessions Judge made over the case to the trial court. 3. The accused was defended by a counsel of his choice. After hearing counsel on both sides, when the charge was framed, read over and explained, he pleaded not guilty. He was on bail. Five witnesses were examined on the side of prosecution. Exts. P1 to P4 were also marked. The material object was identified and marked as MO1. When examined under Section 313(1)(b) of the Criminal Procedure Code (for short the 'Cr.P.C.'), the appellant denied all the incriminating materials and reiterated his innocence. Finding that it is not a fit case for acquittal under Section 232 of Cr.P.C., the accused was called upon to enter on his evidence in defence. Thereafter, one witness was examined for the accused as DW1. After hearing counsel on both sides, the learned Additional Sessions Judge found the accused guilty of offence under Section 8(2) of the Abkari Act. After hearing him on sentence, he was sentenced to undergo rigorous imprisonment of two years and to pay a fine of Rs. One lakh. That conviction and sentence are challenged in this appeal preferred under Section Crl.Appeal No. 1373 of 2006 4 374 of the Cr.P.C. 4. I heard the learned counsel for the appellant and also the learned Public Prosecutor. Entire records of the trial court were perused. 5. The learned counsel for the appellant has confined to three contentions. According to him, even though it is alleged that sample was collected from the contraband which was allegedly carried by the appellant, there is no material on record to show that it was sent for chemical examination report as much as the forwarding note has not been brought in evidence. According to him, it is a serious flaw on the part of the prosecution, which is sufficient to exonerate the appellant. To support the contention, he has relied on the decisions in **Sadasivan @ Para v. State of Kerala and Another [2020 KHC 478]** and also **Unnikrishnan Nair v. State of Kerala [2020 (3) KHC 455].** Secondly, it was argued that the arrest memo has not been produced or proved which also creates doubt in the version of the prosecution. In this connection, he has placed reliance on **Ramankutty v. Excise Inspector, Chelannur Range [2013(3) KHC 308].** Thirdly, it was contended that the Ext.P1 seizure mahazar does not bear the Crl.Appeal No. 1373 of 2006 5 seal of the detecting officer. It is also a serious lacuna on the part of the prosecution. According to the learned counsel, on these considerations, the prosecution has failed to prove the guilt of accused beyond doubt and he should have been acquitted by the trial court. 6. The learned Public Prosecutor pointed out that the arrest memo was produced before the Magistrate on the same day which can be seen from the records. She also pointed out that the property list was also produced enumerating the items. According to her the fact that the seizure mahazar does not contain the seal of the detecting officer is not a serious matter to be taken note of. 7. PW1, the Excise Inspector who detected the crime, seized the contraband and arrested the accused, gave evidence as PW1. He has fully supported the prosecution case. PW2 Gopakumar is one of the Excise Guards who accompanied PW1 while detecting the crime. Both of them have given a consistent and uniform version regarding the seizure and arrest of the appellant. According to them, while they were moving on routine patrol duty through the Kareelakulangara - Chittankari road, at Thachadi Junction in front of the Paravathy Temple, a person was Crl.Appeal No. 1373 of 2006 6 found at a distance of 50 yard moving in the opposite direction carrying a plastic Can of two litres capacity; seeing the excise party he tried to move away; the vehicle was stopped near him, he was intercepted and the content of the Can was tested by smelling and tasting. Finding that it contained arrack, a prohibited item, the person was arrested after preparing the Ext.P1 mahazar. Everything was done in the presence of independent witnesses. A sample was taken from the contraband and after reaching back the Excise Office, Crime No. 11/2001 was registered. The accused was produced before the Magistrate on the same day. PW1 also spoke that the material objects were produced before the Court along with the accused. Even though both PWs 1 and 2 were subjected to cross examination, nothing substantial could be brought out to doubt their credentials. 8. PWs 3 and 4 are independent occurrence witnesses. Both of them admitted the signatures found in Ext.P1 mahazar, but they denied having witnessed the detection, seizure of the contraband or the arrest of the accused. Both of them were declared hostile to the prosecution and were cross examined by the learned Public Prosecutor. PW5 is the successor Excise Crl.Appeal No. 1373 of 2006 7 Inspector who conducted investigation and laid the charge sheet before the Court. 9. DW1 claimed that he was the member of the Panchayath who had gone to the Excise Office on 18.05.2001 on getting knowledge about the arrest of the accused by the Excise party. According to him, he is a neighbour of the accused. The learned Sessions Judge has rightly eschewed the evidence as it is very patent that he was a witness created to speak a parrot like story. 10. After re-visiting the evidence, I have no doubt that the learned Sessions Judge is justified in placing reliance on the oral testimony of PWs 1 and 2 in reaching a finding of conviction. At the same time, the judgment does not show that three fold arguments now raised before this Court were not put forth before the trial court. After analysing the circumstances in toto, it seems that the first argument raised by the learned counsel for the appellant is really formidable. 11. Ext.P4 is the certificate of chemical analysis issued by the Assistant Chemical Examiner to Government testifying that he found 29.21% by volume of ethyl alcohol in the sample sent Crl.Appeal No. 1373 of 2006 8 from the Court in Crime No. 11/2001 of Kayamkulam Excise Range. It is also stated that the seal on the bottle was intact and found tallied with the sample seal provided. Now, it is contended by the appellant that the forwarding note through which the sample was allegedly sent by the Court is not part of the records relied on by the trial court; if it was produced it would have been possible to ascertain whether, it contained sample seal. Since these matters have not been brought on record, it is not possible to say that the sample was sent through proper channel, adhering to known procedures. In any view, this argument cannot be brushed aside. In a case of this nature, offence is revealed only if it is proved that the accused had carried an illicit item in his possession, for which the chemical examination report is the most important item of evidence. Of course, the report is in favour of the prosecution but the court cannot place implicit reliance on it. There is no presumption that it was sent to the laboratory following all the procedural formalities, through proper channel. Here the very important link is missing. Thus neither it is proved that the sample was sent to the laboratory through proper channel under the seal and signature of the Magistrate nor prosecution Crl.Appeal No. 1373 of 2006 9 could make out that the forwarding note contained the sample seal etc. It is a very serious lapse on the part of the prosecution which cuts the very root of their case. 12. Even though the learned counsel had placed reliance on **Ramankutty's case,** quoted supra, I do not find it a serious lapse since the oral testimony of PWs 1 and 2 and Ext. P1 document, which bears signatures of PWs 3 and 4 as well, indicate that the appellant was arrested from the spot as alleged by the prosecution. Moreover, other connected materials also indicate that the appellant was produced before the Magistrate on the same day at 4.30 P.M. and then remanded to judicial custody. The third contention also cannot be given undue importance as much as there is no statutory mandate that the seizure mahazar should contain the seal of the detecting officer. 13. All the same, as mentioned earlier absence of forwarding note is a material defect which is highly fatal. In my assessment, it is sufficient to doubt the contention that the sample was properly dealt with and sent to the Chemical Examiner's Laboratory for making a report. This aspect casts doubt on the prosecution case and on that ground alone the appellant is entitled Crl.Appeal No. 1373 of 2006 10 to get the benefit of doubt. In the result, giving benefit of doubt and in reversal of finding of guilt and sentence imposed, the appellant is found not guilty and acquitted under Section 386(b)(i) of Cr.P.C.. He shall be set at liberty cancelling the bail bonds. Fine amount if any, realised shall be refunded. Sd/- **K.HARIPAL JUDGE** DCS/17.09.2020