Prabhakaran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 5TH DAY OF AUGUST 2014/14TH SRAVANA, 1936 CRL.A.No. 125 of 2005 (A) -----------------------------AGAINST THE JUDGMENT IN SC 115/2003 of ADDL. DISTRICT & SESSIONS COURT (ADHOC-I), KOZHIKODE DATED 12-01-2005 ---------- APPELLANT/ACCUSED:: -------------------------PRABHAKARAN, S/O. CHOYIKUTTY, AROTHIYIL, MELUR AMSOM, CHELIYA DESOM KOYILANDY TALUK. BY ADVS. SRI.P.S.SREEDHARAN PILLAI SRI.K.B.SAJEESH SRI.P.GOPINATH SRI.C.S.SUNIL SRI.P.R.SREEJITH RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.125 of 2005 -----------------------------------------------Dated this the 5[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kozhikode, for the offences under Section 55(a), (b) and (g) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 1,00,000/- and, in default 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. 3. The prosecution case is briefly stated as follows: PW1, the Excise Circle Inspector, Excise Circle Office, Perambra, and his party were on patrol at Cheliya in Meloor Village, at about 11.30 a.m. on 04-11-1998. While so, PW1 Crl. Appeal No.125 of 2005 -2- received reliable information that the appellant was manufacturing illicit arrack in his house. Therefore, PW1 prepared Ext.P1 Search Memo and sent it to the court. Thereafter, PW1 and his party reached the house of the appellant and searched the same. During such search, manufacturing of illicit arrack was found in the kitchen of that house using a 50 litre aluminium vessel containing about 30 litres of boiling wash, a 15 litre vessel with distilling plate and tube connected to a 750 ml. bottle and placed on the first said vessel and a 20 litre aluminium vessel containing lukewarm water placed on the second vessel. Materials including cloth were used for binding these three vessels together. Arrack was seen dropping into the said bottle connected with the tube. The bottle had 500 ml. of arrack at that time. PW1 had seized all these items including two burnt wooden logs out of the logs used as fuel under Ext.P3 Seizure Mahazar. He had arrested the appellant preparing Ext.P2 Arrest Memo. On further search, a 35 litre jerrycan, two jerrycans of 25 litre each and a 16 litre vessel Crl. Appeal No.125 of 2005 -3- fully containing wash were found outside the kitchen of that house. PW1 had drawn 300 ml. of boiled wash in a 375 ml. bottle as sample. He had drawn 300 ml. of wash in a 375 ml. bottle as sample. He had also drawn 180 ml. of arrack in a bottle as sample. These sample bottles were sealed and labelled by PW1. The 750 ml. bottle containing the remaining 320 ml. of arrack was also sealed and labelled. These items were also seized by PW1 under Ext.P3 Seizure Mahazar. Ext.P4 is the Search List prepared by PW1. Thereafter, PW1 reached the Excise Circle Office, Perambra, and prepared Ext.P5 Occurrence Report No.12/98. Later, the appellant, properties and the records were produced at the Excise Range Office, Koyilandy at 2.00 p.m. on that day and they were received by PW4, the Excise Preventive Officer of that Range Office. MOs.1 to 9 are the properties seized by PW1. Thereafter, PW4 registered Crime No.28 of 1998 of that Range Office in respect of the occurrence. Ext.P7 is the Crime and Occurrence Report thus prepared by PW4. He had produced the properties before the court along with Ext.P8 Crl. Appeal No.125 of 2005 -4- List of Property. PW5, the Excise Circle Inspector, Perambra, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Koyilandy. 4. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Koyilandy. Later, the case was made over to the Additional Sessions Court (Adhoc)-I, Kozhikode. The court below framed a charge against the appellant alleging the offences under Section 55 (a) (b) and (g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P10 and MOs.1 to 9 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. Exts.D1 to D3 were marked on the side of the defence. The court below, after considering the matter, found the Crl. Appeal No.125 of 2005 -5- appellant guilty of the offences under Section 55(a),(b) and (g) of the Abkari Act and convicted him thereunder. He 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. According to the prosecution, PW1 had detected the offences while he was on patrol along with other excise officials. PW2, an Excise Preventive Officer, accompanied PW1. Both these witnesses, by and large, supported the prosecution version of occurrence. CWs.4 and 5 were cited by the prosecution as independent witnesses for proving the occurrence including the arrest of the appellant and seizure of the properties. CW4 was examined as PW3. He did not support the prosecution case. He was declared hostile to the prosecution. CW5 was not examined. Therefore, one of the independent witnesses examined as PW3 did not support the prosecution case and the other independent witness was not examined by the prosecution. In such a circumstance, Crl. Appeal No.125 of 2005 -6- whether, relying on the evidence of PWs.1 and 2, a conviction can be entered against the appellant for the serious offences under Section 55(a),(b) and (g) of the Abkari Act is the question to be considered and answered. 6. The prosecution case is that when the excise party headed by PW1 reached near the grocery shop run by one Iyyankandi Bhaskaran at Cheliya, on receiving reliable information by PW1 that the appellant was manufacturing illicit arrack in his house, the excise party left for that house and conducted the search in that house. PW1 deposed that the place of occurrence in this case was 200 yards away towards west from the shop of the said Bhaskaran. But, PW2 stated that the place of occurrence was 200 metres away towards east from the shop of the said Bhaskaran. It is stated in Ext.P3 Seizure Mahazar prepared by PW1 that the house of the appellant situates facing south. But, PW1 deposed before the court that the house situates facing east. He had also denied the suggestion that the house was facing south. PW2 stated that the house was facing south. Crl. Appeal No.125 of 2005 -7- Ext.P3 is silent as to who had put out the fire and brought down the vessels used for manufacturing illicit arrack for examining by the excise party. PW1 deposed before the court that those vessels were brought down by the excise personnel. But, this statement of PW1 is contradicted by his Ext.D1 statement given to the Investigating Officer. Ext.D1 indicates that the fire was put out and the vessels were brought down by the appellant at the instance of the excise party. Similarly, PW2 deposed that the said vessels were brought down not by the appellant, but by the excise personnel. He also stated that he did not tell the Investigating Officer at the time of questioning him that the said vessels were brought down by the accused. These statements are also contradicted by his Ext.D2 statement given to the Investigating Officer. Ext.D2 shows that PW2 told the Investigating Officer that, as directed by PW1, the appellant brought down those vessels. These are all contradictions affecting the veracity of the evidence given by PWs.1 and 2 before the court. PWs.1 and 2 stated that Crl. Appeal No.125 of 2005 -8- the independent witnesses were called from the place near the shop of the said Bhaskaran. It is in the evidence of PW1 that there were houses near the place of occurrence and none of the persons in those houses was made witness to the occurrence. If witnesses were available near the place of occurrence, PW1 should have preferred them as they are the natural witnesses. But, that was not done. No explanation also had been given by PW1 for not making any one of them as a witness to the occurrence. PWs.1 and 2 deposed that the wash found in various vessels was destroyed after drawing their samples. But, that fact does not find a place in Ext.P3 Seizure Mahazar. No explanation also had been offered for not mentioning that material fact in Ext.P3. 7. It is the case of the prosecution that the sample bottles were sealed. PW2 also stated that the sample bottles were sealed. PW1 deposed that the seal affixed on the samples had the impression 'C.P.D' . According to PW2, the samples were sealed with the seal of PW1 and they were affixed by PW1 himself. PW5, the Investigating Officer, Crl. Appeal No.125 of 2005 -9- deposed that he came to know during his investigation that the sample seals were affixed with the personal seal of PW1. 8. 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 three samples. It is also noted in Ext.P9 that the seals on each bottle were intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the sample seal with the impression 'C.P.D' claimed to have been affixed by PW1 on the samples? Ext.P4 is the Search List. The samples are noted as items 10, 11 and 12 in this document. But, they are not described as sealed. Ext.P8 is the List of Property with which the properties were produced before the court. Items 10, 11 and 12 in this document are also the samples. But, they are not described as sealed. A copy of the Forwarding Note, even though available among the records, was not marked in this case. This document was produced before the court by PW4, the Excise Inspector, Koyilandy. Column No.10 in this document provides space Crl. Appeal No.125 of 2005 -10- for affixing the sample seal. Neither the sample seal with the impression 'C.P.D' nor any other sample seal of the Detecting Officer or any other excise officials is seen affixed under that column. But, a sample seal of the Judicial First Class Magistrate, Koyilandy, is seen affixed there. The signature of the Magistrate is also seen in the space provided for the seal. A copy of the Forwarding Note is produced along with the original Forwarding Note for the purpose of keeping as a record in the court. Such a copy should have all the entries including the sample seal affixed in the original Forwarding Note. Since the sample seal of the Detecting Officer or any other excise officials is not seen affixed on the copy, it must be presumed that such a sample impression was absent on the original Forwarding Note as well. Therefore, there was no occasion for the Chemical Examiner to compare the seal claimed to have been affixed by PW1 on the samples with the sample of such seal at the Chemical Examiner's Laboratory. So, the comparison of the seal on the samples made by the Chemical Examiner can be Crl. Appeal No.125 of 2005 -11- with the seal affixed from the court on the samples and the sample seal of the court provided in the Forwarding Note. Moreover, the Property Clerk who was dealing with the Material Objects including samples in the court was not examined in this case in order to ascertain as to whether any sample seal of PW1 or some other excise official was affixed on the Forwarding Note. Merely comparing the seal of the court affixed on the samples with the specimen seal of the court will not give any assurance that the samples of the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the samples by the excise official 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 drawn from the bulk allegedly seized from the appellant. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows : Crl. Appeal No.125 of 2005 -12- “.......... 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 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. Sate 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 Crl. Appeal No.125 of 2005 -13- 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, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. The prosecution case is that the offence in this case was detected by PW1 and his party on 04-11-1998. PW1 was a competent officer to conduct investigation of the case. But, he had not conducted investigation in this case. The investigation was conducted by PW5. It can be seen from the records produced along with the Final Report in this case that he had questioned the witnesses only on 08-03-2002, 29-03-2002 and on 16-05-2002. He had submitted the Final Report before the court on 24-07-2002. Therefore, the inordinate delay in conducting investigation and submitting Final Report before the court are writ large in this case. No explanation had been offered by PW5 or any other excise officials examined in this case for such inordinate delay. Crl. Appeal No.125 of 2005 -14- Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. 10. Ext.P9 Certificate of Chemical Analysis dated 08-03-1999 had been received by the court on 03-07-1999. The Investigating Agency in this case should have submitted the Final Report before the court soon after the receipt of Ext.P9. But, it took more than two and a half years to conduct the investigation of the case by PW5 after the receipt of Ext.P9 by the court. After investigation, the Final Report reached the court only on 24-07-2002. Therefore, the inordinate delay in conducting investigation and submitting Final Report before the court in this case is fatal to the prosecution in the facts and circumstances of this Crl. Appeal No.125 of 2005 -15- case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala [2013(3)KHC 780].** 11. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him. 12. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offences under Section 55(a), (b) and (g) 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&kns&ks/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.125 of 2005 -16-