Poulose v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 26TH DAY OF FEBRUARY 2016/7TH PHALGUNA, 1937 CRL.A.No. 1202 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 293/2005 of ADDITIONAL SESSIONS COURT (ADHOC)-I, ERNAKULAM CP 127/2004 of JUDICIAL FIRST CLASS MAGISTRATE'S COURT,PERUMBAVOOR ## APPELLANT/ACCUSED: ---------------------------------------- POULOSE, S/O.VARGHESE, ARACKAPARAMBIL HOUSE, NADUVATTOM KARA MALAYATTOOR VILLAGE. BY ADVS.SRI.V.RAJENDRAN (PERUMBAVOOR) SRI.GEORGE VARGHESE KIZHAKKAMBALAM RESPONDENT/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KALADY. BY PUBLIC PROSECUTOR SMT. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 1202 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 26[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Ernakulam, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees one lakh and, in defualt of payment of fine, to undergo simple imprisonment for six months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA 1202/2006 2 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Range Office, Kalady, received telephone message that illicit distilling of arrack was going on at a place called '96' belonging to the Plantation Corporation at 4 a.m. on 4.12.2002. Therefore, PW1 and his party left for that place and reached there by 6.30 a.m. While so, the appellant and another were seen distilling arrack. 1.5 litres of arrack was found in a 5 litre jerrycan and 13.5 litres of arrack was found in a 20 litre jerrycan. The vessels containing wash and utensils used for distilling arrack were found. One 100 litre vessel containing about 50 litres of boiled wash was found. Full of wash was also found in two other 100 litre vessels. Since the appellant and the other accused had committed offences under the Abkari Act, they were arrested by PW1 by preparing Exts.P2 and P4 Arrest Memos. Exts. P3 and P5 are the Intimations of Arrest. 1.5 litres of arrack contained in the jerrycan was CRA 1202/2006 3 poured into the other jerrycan containing 13.5 litres of arrack. PW1 had drawn 250 ml. of arrack as sample in a 375 ml. bottle from the bulk of 15 litres of arrack contained in the jerrycan. 500 ml. of wash was drawn as sample in a 500 ml. bottle from the 50 litres of boiled wash found in the vessel. Similar sample was drawn in a bottle from the 200 litres of wash contained in other two vessels. All the samples were sealed. The jerrycan containing the rest of arrack was also sealed. After taking the samples, rest of the wash was destroyed at the spot. These items and other items mentioned were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached the Excise Range Office, Kalady, with the appellant and the other accused, properties and the records. PW1 registered Crime No. 86 of 2002 of that Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence report thus drawn by PW1. The appellant and CRA 1202/2006 4 the other accused, properties including the samples and the records were produced before the Judicial First Class Magistrate's Court, Perumbavoor. Ext.P7 is the List of Property and Ext.P8 is a copy of the Forwarding Note. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. PW4, the Excise Inspector, Excise Range Office, Kalady, conducted the initial investigation of the case. He has questioned the witnesses and recorded their statements. Subsequently, the investigation of the case was taken over by PW5, the Excise Inspector, Excise Range Office, Kalady. He has prepared Ext.P11 Scene Mahazar showing the place of occurrence. He has questioned the witnesses and recorded their statements. After completing the investigation, he has submitted the Final Report before the court. The second accused expired before the committal of the case. 4. The learned Magistrate, after complying with the CRA 1202/2006 5 required legal formalities, committed the case against the appellant to the Court of Session, Ernakulam, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Ernakulam. The court below framed a charge against the appellant alleging the offences under Sections 55(b) and 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P11 and MO.1 and MO.2 series on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has examined DWs.1 and 2 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. Even though the appellant was found guilty of the offence under Section 55(b) of the Abkari Act, no separate conviction was entered against him as he was found guilty CRA 1202/2006 6 and convicted for the offence under Section 8(1) and (2) of the Abkari Act. The appellant was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found distilling and possessing arrack at about 6.30 a.m. on 4.12.2002. He was arrested then and there and the properties including the contraband were seized by PW1 under Ext.P1 Seizure Mahazar. It is also their case that PW1 had drawn three samples of different contraband items and sealed and seized them. It is noted in Ext.P1 Seizure Mahazar that the samples were sealed. PW1 deposed also before the court that the samples were so sealed. 6. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in all the CRA 1202/2006 7 three samples. It is also stated in Ext.P9 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottles by PW1? Ext.P8 is a copy of the Forwarding Note submitted before the court for subjecting the samples to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P8. Whether the sample seal was affixed on the original of Ext.P8 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P8, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They CRA 1202/2006 8 include the quantity and description of the samples drawn from the bulk of the contraband items, details of the case and the space for providing the sample impression of the seal affixed on the samples taken from the bulk of the contraband items. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. 7. A copy of the covering letter sent by the learned Magistrate to the Chemical Examiner is seen enclosed with Ext.P9 Certificate of Chemical Analysis. It is specifically noted in this letter that sample impression of the seal used for sealing the material object is also affixed. Normally, the sample impression so stated in the letter will be the sample CRA 1202/2006 9 impression of the seal affixed from the court. If the Chemical Examiner compared the seal affixed on the sample bottles with the sample seal so provided from the court, such comparison may not lead to the conclusion that the Chemical Examiner, in fact, compared the seal affixed by PW1 on the samples with the sample of such a seal. It will be more so in the light of the facts already stated in respect of Ext.P8 copy of the Forwarding Note. In view of these facts, there is no assurance that the samples of the contraband items allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottles is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the CRA 1202/2006 10 appellant in this case. ## 8. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows : “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the CRA 1202/2006 11 very same sample which 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 appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3)KLT 353)** has held that the prosecution can 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 in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. CRA 1202/2006 12 9. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a CRA 1202/2006 13 report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate concerned. The alleged occurrence in this case has taken place on 4.12.2002. The initial investigation was conducted by PW4 and subsequently, the investigation was taken over by PW5. It can be seen from the records enclosed with the Final Report submitted by the Investigating Agency that the witnesses in this case were questioned on 9.8.2003, 30.10.2003, 12.11.2003, 26.7.2004, 10.8.2004, 5.10.2004 and 5.11.2004. After completing the investigation, the Final Report was submitted on 18.11.2004. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report CRA 1202/2006 14 before the court. When all these facts are considered together, it is unsafe to convict the appellant. The appellant, at least, is entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 8(1) and (2) of the Abkari Act. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks True copy P.S. (Hr.Gr.)To Judge CRA 1202/2006 15