Prabhakaran Pillai, Thulaseedharan Pillai and Kunjamon v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 8TH DAY OF APRIL 2016/19TH CHAITHRA, 1938 CRL.A.No. 228 of 2008 (C) -----------------------------AGAINST THE JUDGMENT IN SC 232/2002 of ADDL. SESSIONS COURT FOR ABKARI ACT CASES, KOTTARAKKARA DATED 29-01-2008 -------- APPELLANTS/ACCUSED NOS.3, 4 AND 7:: ---------------------------------------------- 1. PRABHAKARAN PILLAI, S/O.RAMAN PILLAI, AJITHAVILASOM VEEDU, KARUMPALOOR MURI, NEDUVATHOOR VILLAGE. 2. THULASEEDHARAN PILLAI, S/O. PADMANABHAN PILLAI, PARACKEL VEEDU, PUTHOOR MURI, PUTHOOR VILLAGE. 3. KUNJUMON, S/O. PAPPACHAN, ALUVILAVADAKKETHIL VEEDU, KIZHAKKEKKARA MURI,, KOTTARAKKARA TALUK. BY ADV. SRI.M.G.KARTHIKEYAN RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE,, KOTTARAKKARA, KOLLAM DISTRICT BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-04-2016, A/W CRL.APPEAL NO.229/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal Nos.228 & 229 of 2008 -----------------------------------------------Dated this the 8[th] day of April, 2016 ## **JUDGMENT** 1. kThe appellants were convicted by the Additional Sessions Court (Abkari Cases), Kottarakkara, for the offence under Section 55(a) of the Abkari Act. All the appellants, except appellant 1 in Crl. Appeal No.228 of 2008, were sentenced to undergo rigorous imprisonment for six years each and to pay a fine of 1 lakh each and, in default of₹ payment of fine, to undergo rigorous imprisonment for one year each. The first appellant in Crl. Appeal No.228 of 2008 was sentenced to undergo simple imprisonment for six years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for six months. The appellants 1 to 3 in Crl. Appeal No.228 of 2008 are the accused 3, 4 and 7 and the appellants 1 to 3 in Crl. Appeal No.229 of 2008 are the accused 1, 2 and 6 in the case. Challenging the conviction and sentence passed by the court Crl. Appeal Nos.228 & 229 of 2008 -2- below, the appellants have preferred these appeals. 2. Heard the learned counsel appearing for the appellants in both the appeals and the learned Public Prosecutor appearing for the respondent in these appeals. Both these appeals arise from the same crime and the same judgment. Therefore, they were heard together and are being disposed of by this common judgment. 3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Kottarakkara Police Station, and his party were on patrol at about 11.45 p.m. on 07-07-1999. While so, PW3 received reliable information that spirit was kept and it was being loaded in vehicles at the godown of Ambalakkara Group Toddy Shops at Pulamon Junction. Therefore, after sending Ext.P1 Search Memorandum to the court, PW3 and his party reached that godown when 35 litre jerrycans 3 in number containing full of spirit were found in each of four different vehicles. During the search of the store of that godown, three 35 litre jerrycans containing full of spirit were found in it. Since Crl. Appeal Nos.228 & 229 of 2008 -3- offences under the Abkari Act were committed, the appellants and the fifth accused who were found in possession of the jerrycans were arrested by PW3 then and there preparing Ext.P3 series Custody Memos. The jerrycans containing spirit and the said four vehicles were seized by PW3 under Ext.P2 Seizure Mahazar in the presence of witnesses. PW3 had drawn two samples each in two 180 ml. bottles from each of the 15 jerrycans seized. Thereafter, PW3 and his party reached Kottarakkara Police Station with the appellants, the fifth accused, contraband items and the records. The contraband items were brought to the Police Station in the vehicles seized. PW3 registered Crime No.478 of 1999 of that Police Station in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW3. He had produced the properties before the Judicial First Class Magistrate's Court-I, Kottarakkara. Ext.P5 is the List of Property. The investigation of the case was taken over by PW4, the Circle Inspector of Police, Kottarakkara. He had questioned the witnesses and recorded their statements. He had arrested the eighth Crl. Appeal Nos.228 & 229 of 2008 -4- accused who had allegedly supplied the spirit seized in this case. Ext.P6 is the Arrest Memo in respect of the eighth accused. PW4 had submitted Exts.P7 and P8 reports before the court. Ext.P9 series are inventories in respect of the vehicles seized. Ext.P10 is a copy of the Rent Deed. Ext.P11 is another report. Ext.P12 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW5, the Sub Inspector of Police, Kottarakkara Police Station, had submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Kollam, and, from there, it was made over to the Assistant Sessions Court, Kottarakkara. Subsequently, the case was transferred to the Additional Sessions Court (Abkari Cases), Kottarakkara. Since the fifth accused was absconding, the case against him was split up by the court below. The court below framed a charge against the appellants alleging the offences under Sections 55(a) and (i) Crl. Appeal Nos.228 & 229 of 2008 -5- and 57(a) of the Abkari Act. The appellants pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P12 and M.O.1 series on their side. The appellants were examined under Section 313 of Cr.P.C. and recorded their statements. They denied the incriminating circumstances shown against them. DW1 was examined on the side of the defence. The court below, after considering the matter, found the appellants guilty of the offence under Section 55(a) of the Abkari Act and convicted them thereunder. They were not found guilty of the offences under Sections 55(i) and 57(a) of the Abkari Act. The eighth accused was found not guilty of the offences under Section 55(a) and (i) of the Abkari Act and he was acquitted. The appellants were heard on the question of sentence and imposed the sentence on them. 5. The appellants have raised various contentions challenging the conviction and sentence passed by the court below against them. It is the case of the prosecution that the appellants were found in possession of spirit in large Crl. Appeal Nos.228 & 229 of 2008 -6- quantities at about 11.45 p.m. on 07-07-1999 and they were arrested by PW3 then and there and the contraband was seized by him under Ext.P2 Seizure Mahazar. But, the contraband including the samples were produced before the court only on 09-07-1999. It can be seen from Ext.P5 List of Property that the contraband including the samples were produced before the court only on 09-07-1999. PW3, the Detecting Officer, had not offered any explanation for the delay that occurred in producing the contraband before the court. He stated that the material objects were kept under his safe custody till they were produced before the court. The properties were kept under the safe custody of PW3 as claimed by him is no explanation for the delay that occurred in producing them before the court. Producing the contraband along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production Crl. Appeal Nos.228 & 229 of 2008 -7- of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of even a single day is fatal to the prosecution case. It appears that Ext.P2 Seizure Mahazar, Ext.P3 series Custody Memos and Ext.P4 F.I.R. were produced before the Magistrate on 08-07-1999. Then what was the reason for not producing the contraband alone before the Magistrate on 08-07-1999. As already found, no explanation had been offered by the prosecution for the same. Therefore, this unexplained delay that occurred in producing the properties before the court is fatal to the prosecution case. 6. Ext.P12 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. It is reported in this document that ethyl alcohol was detected in all the samples and all the samples were found to be rectified spirit free from noxious ingredients injurious to health. The percent by volume of ethyl alcohol present in the samples is also reported in Ext.P12. It is stated in this Crl. Appeal Nos.228 & 229 of 2008 -8- document that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? None of the Excise Officials examined in this case stated that a sample seal of the seal affixed on the samples was provided for comparison. No Forwarding Note has been marked in this case. A copy of the Forwarding Note is not available among the records of the case. It is the case of the prosecution that the sample bottles were sealed. But, the impression of such a seal was not affixed in Ext.P2 Seizure Mahazar. None of the official witnesses examined stated that a Forwarding Note describing the samples and affixed with the specimen impression of the seal claimed to have been affixed on the sample bottles was produced before the court for sending to the Chemical Examiner for his comparison. PW3 simply stated that he had prepared a requisition for the examination of samples. He had not even stated that such a requisition was produced before the court along with the contraband and the sample bottles. The property clerk who was dealing with the properties in the Crl. Appeal Nos.228 & 229 of 2008 -9- court was not examined in this case. Had he been examined, some relevant light would have been available for finding whether or not the samples were sent to the Chemical Examiner for subjecting them to analysis along with a Forwarding Note or some other document affixed with the specimen seal of the seal affixed on the sample bottles. In view of these facts, there is no assurance that the samples subjected to chemical analysis were really the samples of the contraband allegedly seized from the appellants. Such an assurance is possible only when the sample seal of the seal affixed on the sample bottles was 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 appellants in this case. ## 7. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: - “..........The investigating officer has also deposed Crl. Appeal Nos.228 & 229 of 2008 -10- 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 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.” 8. The Division Bench of this Court in **Ravi v. State of Kerala** (supra), 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 Crl. Appeal Nos.228 & 229 of 2008 -11- was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, Ext.P12 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. PW3 is the Detecting Officer. He had stated that the fact that a Search Memo was prepared happened to be omitted to note in Ext.P2 Seizure Mahazar. A Search List had not been prepared by PW3 in respect of the search conducted. The explanation offered by PW3 for not preparing a Search List is that he had not taken the Search List Form on that day. Such an explanation offered by PW3 cannot be accepted as a valid one. PW1 was examined as an independent occurrence witness for proving the prosecution case. But, he has not supported the prosecution version of occurrence. He was declared hostile to the prosecution. The other independent occurrence witness cited was not examined by the prosecution. When all the foregoing facts are considered, it is unsafe to convict the appellants for a serious offence under Section 55(a) of the Abkari Act. They, Crl. Appeal Nos.228 & 229 of 2008 -12- at least, are entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellants are liable to be set aside. They are entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 11. In the result, the conviction and sentence passed by the court below against the appellants are set aside. They are acquitted of the offence under Section 55(a) of the Abkari Act. They are set at liberty. The bail bonds executed by them shall stand cancelled. The amounts, if any, deposited by the appellants as directed by this Court shall be returned to them. These appeals are allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal Nos.228 & 229 of 2008 -13-