Omanakuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **TUESDAY, THE 22ND DAY OF OCTOBER 2013/30TH ASWINA, 1935** **CRL.A.No. 648 of 2005 ( ) --------------------------** **AGAINST THE JUDGMENT IN SC 156/2003 of ADDL.SESSIONS JUDGE, FAST TRACK COURT-1, ALAPPUZHA DATED 04-03-2005** **APPELLANT(S)/ACCUSED:** **----------------------** **OMANAKUTTAN, S/O.KUNJUKUNJU, CHIRATHAZHA VEEDU, ARANOOTTIMANGALAM MURI, VETTIYAR MAVELIKKARA.** **BY ADVS.SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SMT.SREELEKHA PUTHALATH SRI.A.R.DILEEP** **RESPONDENT(S)/STATE AND COMPLAINANT:** **-------------------------------------** **1. STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **2. THE EXCISE INSPECTOR, MAVELIKKARA EXCISE OFFICE, MAVELIKKARA.** **BY PUBLIC PROSECUTOR ADV.SRI.N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J. ------------------------------Crl.A.No.648 of 2005** **------------------------------Dated this the 22[nd] day of October, 2013.** ## **J U D G M E N T** Challenging the judgment dated 4.3.2005 in S.C.No.156/03 of the court of Additional Sessions Judge Fast Track court-I, Alappuzha, the sole accused therein preferred this appeal as he is convicted and sentenced for the offence under section 55(a) of the Abkari Act. 2. The case of the prosecution is that on 18.11.1999 at about 5.30 p.m. while PW1, the Excise Circle Inspector of Mavelikkara Excise Circle Office, and party were on patrol duty along the Panchayat road proceeding from Mooppathimukku Gurumandiram junction to Chirathazha temple and Thazhakkara paddy field in Vettiyar Village, saw the accused alighting to the road from the temple compound on the southern side holding a can of 10 ltr. capacity. On interception and inspection of the can it is **Crl.A.No.648 of 2005** 2 detected that the can contains a liquid and by smelling and tasting identified it as spirit and accordingly the accused was arrested and registered C.R.No.83/99 in the Excise Range office, Mavelikkara. On completing the investigation, a formal charge was laid, based upon which, the above sessions case was originally instituted and transferred to the present trial court for disposal. 3. On the appearance of the appellant/accused, a formal charge was framed for the offence punishable under sections 8(1) and (2) and 55(a) of the Abkari Act, which when read over and explained to the appellant/accused, he denied the same and pleaded not guilty. Thereafter, the prosecution adduced its evidence by examining Pws.1 to 6 and produced Exts.P1 to P5 documents. M.O.1 can was also identified and marked as material object. No evidence adduced from the side of the defence. The trial court finally found that the appellant/accused is guilty and accordingly he is convicted for the offence under section 55 **Crl.A.No.648 of 2005** 3 (a) of the Abkari Act. On such conviction, he is sentenced to undergo imprisonment for a period of 3 years and to pay fine of `1 lakh and in default to undergo simple imprisonment for 6 months. Set off was allowed. Thus, challenging the above finding, order of conviction and sentence, the sole accused in the above case preferred this appeal. 4. Heard Adv.Sri.George Varghese Perumpallikuttiyil, learned counsel for the appellant and Adv.Sri.N.Suresh, learned Public Prosecutor for the State. 5. PW1 is the Officer who detected the crime and PW2 is the Excise Inspector who accompanied PW1 at the time of detection of the crime. When PW1 was examined, he had deposed that, at the relevant point of time he was working as the Excise Circle Inspector attached to Excise Circle office, Mavelikkara, and himself and party were on patrol duty at the relevant time. At about 5.30 p.m. on 18.11.1999, he saw the appellant/accused alighting from **Crl.A.No.648 of 2005** 4 the temple compound on the southern side of the temple to the panchayat road, which is lying between Mooppathimukku Gurumandiram junction to Chirathazha temple and on seeing the Excise party, the appellant/ accused got perplexed and tried to ran away from the place of occurrence, but he was intercepted and on inspection of the can, which was held by the appellant/accused, the same was found containing liquid, which on smelling and tasting identified as spirit. Thus as the accused contra-banned the provisions of the Kerala Abkari Act, according to PW1, he arrested the appellant/accused, seized the contraband article, drawn sample from the can for the purpose of chemical analysis and the entire procedures adopted in the seizure of the contraband article and for drawing of the sample, were mentioned in the mahazar prepared by him. Thus while PW1 was examined, Ext.P1 mahazar and Ext.P2 arrest memo were identified and marked through him. He had also identified M.O.1 can. PW2, during examination, **Crl.A.No.648 of 2005** 5 deposed fully in terms of deposition made by PW1. PW3 is the then Excise Inspector of Mavelikkara Excise Range, before whom Pws.1 and 2 produced the appellant/accused as well as the properties and the connected documents. When PW3 was examined, he deposed and acknowledged the receipt of the appellant/accused as well as the contraband article and documents. According to PW3, he prepared a crime and occurrence report only on the next day, ie., on 19.11.1999, which is marked as Ext.P3. It is also his claim that he prepared Ext.P4 property list on 19.11.1999 and produced the properties before the court below on 19.11.1999 itself. When the independent witnesses, Pws.4 and 5, were examined, they turned hostile towards the prosecution. PW6 is the Investigating Officer who undertaken the investigation and finally laid the charge. When he was examined, Ext.P5 chemical analysis report is marked through him. It is on the basis of the above evidence and materials, the trial court arrived in its **Crl.A.No.648 of 2005** 6 finding and convicted the appellant. 6. Learned counsel for the appellant after taking me through the evidence of Pws.1 to 6 and Exts.P1 to P5 documents, submitted that the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. It is the contention of the learned counsel that there is no guarantee that Ext.P5 chemical analysis report represents the sample drawn, which said to have drawn from the contraband material seized from the possession of the appellant by PW1. In order to substantiate the above contention, the learned counsel submitted that, neither the forwarding note nor the sample seal was produced in the present case, so as to ensure the claim of the prosecution that the sample said to have drawn from the bulk quantity of the contraband article, which allegedly seized from the possession of the accused, was intact. It is pointed out that there is no explanation as to how the court has allegedly sent the requisition to the **Crl.A.No.648 of 2005** 7 chemical examiner for chemical analysis of the sample in the absence of any forwarding note or requisition from the investigating agency. In support of the above submission, the learned counsel placed reliance upon the decisions of this Court **Joseph Vs. State of Kerala (2009(4) KHC 537), Gopalan Vs. State of Kerala (2012 KHC 812), Sasidharan Vs. State of Kerala (2007(1) KHC 275), Sathi Vs. State of Kerala (2007(1) KHC 778)** and **Balakrishnan Vs. State of Kerala (2007 KHC 3666)** . 7. The learned Public Prosecutor fairly conceded that there is some substance in the submission of the learned counsel for the appellant, especially in the absence of evidence and materials from the side of the prosecution towards the safety measures adopted in keeping the sample intact. 8. I have carefully considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and I have also perused the **Crl.A.No.648 of 2005** 8 evidence and materials on record. 9. In the light of the arguments advanced and in view of the available evidence and materials on record, the question to be considered is whether the trial court is justified in its finding and convicting the appellant for the offence under section 55(a) of the Abkari Act and whether the prosecution has succeeded in proving that the appellant/accused was found in possession of spirit as alleged by the prosecution. The main point urged by the learned counsel for the appellant is that the evidence on record is not sufficient to prove that the sample allegedly drawn from the contraband article, which said to have seized from the possession of the accused, reached in the hands of the chemical examiner in a full proof manner. According to me, the above submission requires serious consideration. In the present case, though PW1 was examined, he has not stated as to what kind of seal he had used while drawing the sample. Moreover, his evidence 9 ## **Crl.A.No.648 of 2005** shows that he entrusted the material object including the sample with PW3 on the date of the seizure itself, ie., on 18.11.1999. But the evidence of PW3 shows that he prepared Ext.P3 crime and occurrence report at 8 a.m. on 19.11.1999 and his evidence further shows that he produced the material object and the sample before the court as per Ext.P4 property list. But there is no evidence as to whether the property including the sample were kept intact, till the same produced before the court. No evidence is forthcoming as to the measures adopted by PW3 to keep the contraband article and the sample intact and to prevent any tampering of the sample. 10. Strange enough to note that, as per the records of the prosecution, the sample was sent to the chemical analyst on 19.11.1999 itself and as per Ext.P5 report, they received the sample bottle on 20.11.1999. In Ext.P5 chemical analysis report it is further seen endorsed to the effect that the seal on the bottle was intact and found **Crl.A.No.648 of 2005** 10 tallied with the sample seal provided. Suffice to say, in the present case, no forwarding note filed and produced and marked during the trial. So, this Court fail to understand that, on what basis the chemical examiner reported that the seal on the bottle was intact and found tallying with the sample seal provided. Even the copy of the letter, dated 19.11.1999 of the court of Judicial First Class MagistrateMavelikkara, is not produced during the trial of the above case. 11. In this connection it is relevant to note that in the decision in **2009(4) KHC 537** it is held that, “In the absence of any materials to show that the properties including the sample bottle reached the court with their seals intact, the prosecution could not establish the case beyond reasonable doubt.” It has also held in paragraph 18 of the very same decision that, “ 18. Yet another infirmity in the prosecution case is that there is no request or 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. PW6 who **Crl.A.No.648 of 2005** 11 conducted the investigation, has no case that he had made any such request or had filed any forwarding note. Likewise, PW1 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 19/08/1997 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 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 (See -- State of Rajasthan v. Daulat Ram, AIR 1980 SC 1314 : 1980(3) SCC 303 : 1980 SCC (Cri) 683 : 1980 CriLJ 929, Valsala v. State of Kerala, 1993 KHC 798 : 1993(2) KLT 550 (SC) : 1993 Supp (3) SCC 665 : 1993 SCC (Cri) 1082 : AIR 1994 SC 117 : 1993(2) Crimes 267 and Sasidharan v. State of Kerala, 2007 KHC 3404 : 2007(1) KLT 720).” **Crl.A.No.648 of 2005** 12 12. Similarly, in another decision reported in **2012 KHC 812** , a learned Judge of this Court has held that, “Curiously enough, copy of the forwarding note was also not marked. It is also important to note that PW6, the Investigating Officer has confessed that he did not see the seal alleged to have been used to seal M.O.1 and the sample bottle. There is a duty cast on the Investigating Officer to verify the same. It is also not in evidence as to what happened to the copy of the forwarding note and why it was not marked.” It has also held in the above decision that, “Absence of the specimen impression of the seal itself may not be a ground to doubt the prosecution case, but considering the totality of the circumstances that also would assume much relevance because PW6 himself says that he had no occasion to see the seal used to seal M.O.1 and the sample bottle.” 13. On examination of the facts and circumstances of the case in the light of the above decisions, according to **Crl.A.No.648 of 2005** 13 me, in the present case, the prosecution has miserably failed to show that the sample allegedly drawn by PW1 has reached in the hands of the chemical examiner intact. 14. As I indicated earlier, the evidence of PW1 does not disclose as to what kind of seal he affixed on the sample allegedly drawn. No evidence is given by PW3 as to where the contraband article as well as the sample kept by him and the measures adopted to keep the sample intact and to prevent tampering of the same, till the same produces before the court. No forwarding note or requisition was produced or marked from the Investigating agency during the trial of the case and therefore there is no link evidence to show as to how the court sent the sample for chemical analysis on 19.11.1999 itself. The thondi clerk of the committal court was also not examined to ascertain as to when did the sample despatch and who has received the same and taken to the chemical examiner and the person who allegedly taken the sample to the chemical examiner **Crl.A.No.648 of 2005** 14 was also not examined. In the absence of the sample seal produced in the trial court, especially in view of the evidence of PW1, according to me, the endorsement contained in Ext.P5 chemical analysis report, that the seal on the sample bottle is not tallying with the sample seal provided, cannot be accepted as correct and no evidential value can be attached. Therefore, I am unable to conclude that the sample allegedly drawn from the bulk of spirit, which said to have seized from the possession of the appellant/accused, reached in the hands of the chemical examiner in a full proof manner and therefore, the prosecution has miserably failed to prove its case against the appellant/accused beyond reasonable doubt. 15. In the light of the above discussions and the materials and evidence referred above and the circumstances mentioned, according to me, the prosecution has miserably failed to prove its case against the appellant/ accused beyond reasonable doubt. Accordingly, extending ## **Crl.A.No.648 of 2005** **==> picture [13 x 10] intentionally omitted <==** the benefit of doubt in favour of the appellant, the conviction recorded by the trial court against him is set aside. In the result, this appeal is allowed setting aside the judgment dated 4.3.2005 in S.C.No.156/03 of the court of Additional Sessions Judge, Fast Track-I, Alappuzha, and the appellant/accused is acquitted of all the charges levelled against him and the bail bond if any executed by him is stand cancelled and he is set at liberty. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge