## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT:**
**THE HONOURABLE MR. JUSTICE A.HARIPRASAD**
**MONDAY, THE 27TH DAY OF JANUARY 2014/7TH MAGHA, 1935**
**CRL. A.NO. 1669 OF 2003 ( )**
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**JUDGMENT IN S.C. NO.199 OF 2001, ADDITIONAL DISTRICT COURT, FAST TACK-II, PALAKKAD, DATED 01-10-2003**
## **APPELLANTS/ACCUSED NOS.1 AND 2:**
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**1. PONNUCHAMI, S/O.CHENNIYAPPA KOUNDER, CHINNAMADAKKAD, PUTHUR, NELLIKOUNDANPALAYAM, PUDUPPALAYAM P.O., AVINASSI TALUK, COIMBATORE DISTRICT.**
**2. GOPALAN, S/O.ANKAPPAN, CHUNDAKKAMPALAYAM, NAMBINAMPALAYAM, AVINASSI, COIMBATORE DISTRICT.**
**BY SENIOR ADVOCATE SHRI P. VIJAYA BHANU BY ADVOCATE SMT. P.MAYA**
## **RESPONDENT/COMPLAINANT:**
**--------------------------------------------**
**STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **BY PUBLIC PROSECUTOR SHRI N. SURESH**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.01.2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **A.HARIPRASAD, J.**
## **-------------------------------------Crl. Appeal No.1669 of 2003 -------------------------------------Dated this the 27[th] day of January, 2014.**
## **JUDGMENT**
Appeal filed under Section 374(2) of the Code of Criminal Procedure.
2. Accused in S.C.No.199 of 2001 on the file of Additional Sessions Court, Fast Track-II, Palakkad, who have been convicted under Section 55(a) of the Abkari Act (for short, “ Act”) are the appellants in this case. Prosecution case, put in brief, is thus:
On 23.08.1999, at about 5.30 p.m. the accused persons were found transporting about 600 litres of spirit in a tempo trax vehicle bearing registration No.TN-47/D 7018. They were intercepted by the Excise Officers at the check post at Walayar. 1[st] appellant was the driver and the 2[nd] appellant was allegedly a co-driver. On closure of investigation, the charge was filed. After committal proceedings, learned Sessions Judge took cognizance of the matter and issued process. Appellants appeared before the trial court and stood the trial. Before the court below, five witnesses were examined on the side of the prosecution and one witness was examined for the defence. Exts.P1 to P8 and X1 and X2 series are the documents available in the records.
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3. Heard the learned counsel for the appellants and the learned Public Prosecutor.
4. Court below after appreciating evidence found that accused 1 and 2 were found to be engaged in transporting illicit spirit in a vehicle and the volume of spirit recovered from their possession was about 600 litres. Court below, therefore, found that they are guilty of offence under Section 55(a) of the Act which reads as follows:
## _“_ _**55. For illegal import, etc** .- Whoever in_
_contravention of this Act or of any rule or order made under this Act_
_(a) imports, exports, transports, transits or possesses liquor or any intoxicating drug;_
_(b) to (i) omitted_
_shall be punished.-_
_(1) for any offence other than an offence falling under clause (d) or clause (e), with imprisonment for a term which may extend to ten years and with fine which shall not be less than rupees one lakh and_
_(2) for an offence falling under clause (d) or clause (e), with imprisonment for a term which may_
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_extend to one year or with fine which may extend to ten thousand rupees or with both.”_
5. Learned counsel for the appellants submitted that witnesses testified on the side of the prosecution have developed a case which is not borne out from the contemporaneous records produced. PW1 is the Excise Inspector at the material time who detected the offence. According to his evidence, the offending vehicle was intercepted on the above mentioned day and the vehicle was stopped for inspection. At that time, 1[st] accused was driving the vehicle and the 2[nd] accused was sitting by the side of him. It is the case of PW1 at the time of evidence that on examination, he found out three chambers underneath the back seat of the vehicle wherein spirit was illegally transported. Although he deposed that three samples of the contraband were taken from each of the chambers, the contemporaneous documents do not show such drawal of samples. In this context we will straight away look into Ext.P1 seizure mahazar. It is mentioned in Ext.P1 that three sample bottles, each containing 375 ml. of the contraband were taken and it does not speak of the drawal of sample from each chamber allegedly found in the vehicle. It is disturbing to note that no property list in the required form has been produced in this case. Instead, a list of properties in triplicate was submitted on 24.06.2003, i.e, almost four years after the detection. The case of PW1 that he found out
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three chambers in the offending vehicle and samples were drawn therefrom in three separate bottles do not derive any support from the documents available in this case. Officer was subjected to cross examination. Except his _ipse dixit_ there is no reliable evidence to accept this prosecution case. Evidence tendered by PW1, Assistant Excise Inspector is also silent about this aspect of the prosecution case. Though he has mentioned in his oral evidence about the presence of three chambers in the vehicle, his testimony also gets no support from the material documents produced.
6. Learned counsel for the accused contended that there is inordinate delay in the production of samples allegedly drawn in this case. The case of the prosecution is that the incident was on 23.08.1999. Ext.P7 series contain the note submitted by the Excise Inspector, Palakkad Range for forwarding the sample for chemical analysis. The court seal affixed thereon would show that it was received in court on 08.09.1999. The same seal also could be seen from the forwarding note submitted along with this request and it was also received in court on 08.09.1999. Ext.P7 series show that the trial court forwarded the sample bottles (three in numbers) to the Chemical Examiner's Laboratory on 23.09.1999. It is evident that there was considerable delay in producing the sample bottles in court. Explanation by PW4 in this context is relevant to note. PW4
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stated that when the accused persons were produced before the court, sample bottles were not produced as their production was on a holiday. According to PW4, the office of the trial court will not receive the forwarding note and articles during holidays. The offending vehicle was produced on 28.08.1999 before the Assistant Excise Commissioner. Admittedly that was a working day. Even on that date, the articles were not produced before the trial court. Only explanation forthcoming from the testimony of PW4 is that he was engaged in other matters. However, it is evident that the articles were produced before the court only on 08.09.1999. Thus, it is after 16 days of the occurrence the contraband was produced before court. Learned counsel for the appellants strongly relied on a Division Bench decision rendered by this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . That was also a case wherein the sample was produced in court after 16 days of occurrence. Considering all the binding precedents on the point, it was held by this Court that no conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analyzed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. As in the other cases, here also there is no satisfactory link evidence to show that it was the same bottles seized from the appellants which eventually found their way into the hands
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of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of the Department. The link evidence available in this case is only Ext.P7. It shows that there is delay in producing the samples before the court and it goes unexplained. Therefore, I find that the ratio in **Ravi** 's case (supra) is squarely applicable to this case also.
7. Learned Public Prosecutor submitted that the oral evidence tendered by PW1, 2 and 4 is sufficient to inculpate the accused in this crime. It is to be noted that their oral evidence is incongruous in certain terms. There is incongruity in the matter of sealing and sampling of the sample bottles if we look into the evidence of PWs 1 and 2. Therefore, I am of the view that oral evidence alone cannot be relied on to enter a conviction on the appellants.
8. Before parting with this case, I am constrained to make an observation that this is yet another example of bungled investigation whereby the accused could clinch an acquittal only on laches on the part of the investigating officers. Time and again, this Court has mentioned the importance of conducting investigation expeditiously and following the procedure for lending credibility to the investigation. The explanation given by the officers for not producing the samples on time before the court is that they were trying to find out the source of the contraband. That is not a
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justification for not discharging their duties and filing the documents at the appropriate time before the trial court. I must say that the officers have failed in their duty in this matter which ultimately results in the acquittal of accused. However, on appreciation of evidence and application of legal principles, I find that the conviction by the trial court is not legally sustainable.
In the result, appeal is allowed. Appellants are acquitted of a charge under Section 55(a) of the Abkari Act in S.C.No.199 of 2001 of the Additional Sessions Court, Fast Track No.II, Palakkad. They shall be set free, if not wanted in any other case. Their bail bonds are cancelled. The amounts deposited by the accused as a condition for obtaining suspension of sentence shall be refunded.
All pending interlocutory applications will stand dismissed.
## **A. HARIPRASAD, JUDGE.**
## **cks**
