Omana Ammal v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938** **CRL.A.NO. 803 OF 2004 (E) --------------------------** **AGAINST THE JUDGMENT DATED 07-05-2004 IN SC NO.559/2001 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA** **APPELLANT/ACCUSED:: ---------------------** **OMANA AMMAL, W/O. GOPI PILLAI, OLIPARACKAL VEEDU, THEKKUMALA, PAYYANAMON, KONNI THAZHAM VILLAGE, KOZHENCHERRY TALUK.** **BY ADV. SRI.V.PHILIP MATHEW** **RESPONDENT/COMPLAINANT::** **-------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. C.K. PRASAD** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **B. SUDHEENDRA KUMAR, J.** ----------------------------------------- ## **Crl.A. N0.803 of 2004** ------------------------------------------------- Dated this the 7[th] day of February, 2017 ## **JUDGMENT** The appellant was convicted and sentenced by the court below under Section 8(2) of the Abkari Act. 2. The prosecution allegation is that on 6.6.98 at about 11.50 a.m., the appellant was found in possession of five litres of arrack in contravention of the provisions of the Abkari Act. 3. Heard. 4. The learned counsel for the appellant has argued that since there is no evidence to prove the drawing of sample and forwarding the same to the laboratory in a tamper-proof manner, the appellant is entitled to benefit of doubt. 5. It has been further argued by the learned counsel for the appellant that since the detection, the seizure of the contraband and the arrest of the appellant Crl.A. N0.803 of 2004 2 were done by PW1, who was only an Assistant Excise Inspector not empowered under the Abkari Act to perform the duties as an Abkari Officer under the Act, the appellant is entitled to benefit of doubt for that reason as well. 6. In this case, Ext.P5 property list would show that the contraband as such was produced before the court. The evidence of PW1 and PW2 would also show that the contraband as such was seized, sealed and produced before the court. The evidence of PW5 would show that the sample was drawn from the contraband after its production before the court and thereafter the same was forwarded to the laboratory for analysis. However, there is absolutely no evidence before the court with regard to the drawing of the sample from the contraband. No forwarding note was also marked before the court. No forwarding note was also available with the records transmitted to this Court, which would show that no forwarding note was prepared or produced before the court. Crl.A. N0.803 of 2004 3 ## 7. In Prakasan and Another v. State of Kerala [2016 (1) KLD 311], the Court held thus: “Further in the absence of specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the Crl.A. N0.803 of 2004 4 commission of the crime and that benefit must be given to the accused.” In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could 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 by change of hands in a tamperproof condition. 8. In this case, the forwarding note was neither prepared nor produced before the Court. The thondi clerk, Crl.A. N0.803 of 2004 5 who had drawn the sample from the contraband, was also not examined to prove the drawing of the sample and sending the same to the laboratory in a tamper-proof condition. In view of the above reasons, there is no satisfactory link evidence to show that the sample analysed in the laboratory was the same sample which was drawn from the contraband seized from the appellant and in the said circumstances, the appellant is entitled to benefit of doubt. 9. In this case, PW1 seized the contraband and arrested the appellant. As per S.R.O. No.361/2009 dated 8.5.2009, which came into force with effect from 8.5.2009 the Assistant Excise Inspector of the Range was empowered to exercise all powers and perform all duties of the Excise Inspectors subject to the control of the Excise Inspectors. However, the S.R.O. prevailing during the time of commission of this offence was S.R.O. No.234/1967, as per which the Assistant Excise Inspector was not an Abkari Officer empowered to exercise the powers and perform the duties under the Abkari Act. Crl.A. N0.803 of 2004 6 10. The Court in Subrahmaniyan v. State of Kerala [2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act as per S.R.O. No.234/1967 and hence, the seizure and arrest made by the Assistant Excise Inspector was without authorization and jurisdiction. 11. The Court in Sasidharan v. State of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmaniyan (supra) with approval and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8.5.2009 to perform the duties under Sections 31, 32, 34, 35 and 38 to 53 of the Abkari Act. 12. In this case, the incident was on 6.6.98, which was prior to the notification, namely S.R.O.No.361/2009. Therefore, it has to be held that PW1, the Assistant Excise Inspector, who had made the arrest of the appellant and seizure of the contraband, was not empowered under the Act as it stood then, to perform the duties under the Abkari Act. In the said circumstances, the seizure of the Crl.A. N0.803 of 2004 7 contraband and the arrest of the appellant made by PW1 were without jurisdiction and authorization. Therefore, the conviction and sentence cannot be sustained. In the result, this Appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant stands acquitted for the said offence. The bail bond of the appellant stands discharged. Sd/- **B. SUDHEENDRA KUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//