## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH**
**WEDNESDAY, THE 13[TH] DAY OF OCTOBER 2021 / 21ST ASWINA, 1943 CRL.A NO. 937 OF 2014**
**CP 7/2013 OF JUDL. MAGISTRATE OF FIRST CLASS, KOTHAMANGALAM,**
## **ERNAKULAM**
**AGAINST THE JUDGMENT IN SC 337/2013 OF ADDITIONAL SESSIONS COURT - VII, ERNAKULAM**
## **APPELLANT/ACCUSED:**
P.K. KUNJACHAN S/O. PYLEE, PARAKKAL VEEDU, KOTHAMANGALAM VILLAGE, KOTHAMANGALAM, ERNAKULAM DT.
BY ADV SRI.ALEXANDER JOSEPH
## **RESPONDENT/STATE & COMPLAINANT:**
1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM-682 031. 2 THE EXCISE INSPECTOR EXCISE RANGE, KOTHAMANGALAM-686 691.
## **OTHER PRESENT:**
SRI ARAVIND V MATHEW-PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 6.10.2021, THE COURT ON 13.10.2021 DELIVERED THE FOLLOWING:
Crl.Appeal No.937/2014
-:2:-
## **J U D G M E N T**
Dated this, the 13[th] day of October, 2021
This is an appeal filed by the accused in SC No.337/2013 on the file of the Additional Sessions Court, Ernakulam.
2. The accused/appellant faced trial for an offence punishable u/s 55(a) and 55(i) of the Abkari Act.
3. The prosecution case in short is that on 2/10/2011 at about 9.00 p.m, the accused was found engaged in selling 4.5 litres of Indian Made Foreign Liquor (IMFL) in contravention of the Abkari Act and the Rules.
4. On receipt of summons, the accused appeared at the court below. After hearing both sides, the court below framed charge against the accused u/s 55(a) and (i) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty.
5. The prosecution examined PWs 1 to 6 and marked Exts.P1 to P12. MO1 to 5 were identified. The accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating
Crl.Appeal No.937/2014
-:3:-
circumstances brought against him during evidence. No defence evidence was adduced.
6. Considering the evidence on record, the court below found the accused guilty u/s 55(a) and (i) of the Abkari Act and he was convicted for the said offence. He was convicted and sentenced to undergo simple imprisonment for two years and to pay a fine of `1,00,000/- in default to undergo simple imprisonment for a further period of six months for the offence punishable u/s 55(a) of the Abkari Act and also sentenced him for two years u/s 55(i) of the Abkari Act and to pay a fine of `1,00,000/- in default to undergo simple imprisonment for a further period of six months as per the impugned judgment. Challenging the said judgment, this appeal has been filed.
7. Heard Sri.Alexander Joseph, the learned counsel for the appellant and Sri.Aravind V.Mathew, the learned Public Prosecutor.
8. The learned counsel for the appellant impeached the finding of the court below on appreciation of evidence and resultant finding as to the guilt. The learned counsel submitted that the conviction is based solely on the evidence of the official
Crl.Appeal No.937/2014
-:4:-
witnesses. The counsel further submitted that there is no evidence to show that total quantity of IMFL allegedly seized from the possession of the appellant was above the permissible quantity. The counsel also submitted that the official with whom the sample was sent was not mentioned in the forwarding note. The learned Public Prosecutor on the other hand supported the findings and verdict handed down by the court below and argued that necessary ingredients of S.55(a) and (i) of the Abkari Act had been established and the prosecution has succeeded in proving the case beyond reasonable doubt.
9. PW2 is the detecting officer. His evidence would show that total 12 bottles of IMFL were seized from the possession of the accused. The prosecution case is that the total quantity of the liquor filled in those 12 bottles were 4.5 litres. The evidence of PW2 would further show that he drew sample from 3 bottles only. Admittedly, no sample was drawn from the remaining bottles. As per S.13 of the Abkari Act, the possession of liquor in excess of the quantity prescribed by the Government alone is prohibited. At the relevant time, possession of IMFL above 3 litre alone was prohibited. Thus, in the absence of evidence that all
Crl.Appeal No.937/2014
-:5:-
the bottles carried by the accused contained illicit liquor, it cannot be said that the accused possessed IMFL above the permissible limit of 3 litres. That apart, apart from the testimony of PW1, there is no satisfactory evidence to show that the quantity of liquor seized from the possession of the accused was 4.5 litres.
10. The learned counsel for the appellant next argued that the official with whom the sample was sent for chemical analysis was not mentioned in the forwarding note nor did the prosecution examine the thondi clerk of the court or excise guard concerned to prove the tamper proof despatch of the sample to the laboratory, the benefit of which should, definitely, go to the accused. I find some force in the said argument. A similar issue was considered by this Court in _**Kumaran P. v. State of Kerala and Another**_ (2016 (5) KHC 632). It was held in the said decision thus:
_"7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name o the person with whom the sample was sent for analysis. Ext.P4_
Crl.Appeal No.937/2014
## -:6:-
_Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the_
Crl.Appeal No.937/2014
## -:7:-
_prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained"._
11. Ext.P10 is the forwarding note whereby the sample was forwarded to the chemical examiner. It is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P11 chemical analysis report shows that the sample was received in the laboratory through the excise guard Jomon George. It is also not discernible from Ext.P10 as to when the learned Magistrate put the initial in the forwarding note. The date is absent. Since the date was not written by the learned Magistrate when the initial was made, it is not clear in Ext.P10 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P10. The prosecution did not examine the thondi clerk of the court or the excise guard concerned to prove the tamper proof despatch of the sample to the laboratory. It is fatal to the prosecution case. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with
Crl.Appeal No.937/2014
-:8:-
during the period in question. In _**Moothedath Sivadasan v. State of Kerala**_ (2021 (2) KLJ 80), this Court recently has held that in the absence of any link evidence to show that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused.
12. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution evidence. For these reasons, I hold that the conviction and sentence passed by the court below cannot be sustained.
In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled.
Sd/-
## **DR. KAUSER EDAPPAGATH**
**JUDGE**
**Rp**
