Prasad v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937 CRL.A.No. 695 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 394/2000 of ADDL. SESSIONS COURT (ADHOC)-I KOLLAM DATED 31-01-2006 CP 52/2000 of J.M.F.C.-I, KOLLAM APPELLANT/ACCUSED.: --------------------- PRASAD, S/O.RAVEENDRAN PILLAI, MINI COLONY, NO.11, P.K.JUNCTION, PERAYAM CHERY, THRIKKOVILVATTOM VILLAGE. ## BY ADV. SRI.S.GIRISH RESPONDENT/COMPLAINANT: -------------------------- THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 695 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 9[th] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Kollam, for the offence under Section 55 (a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for one year. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned Public Prosecutor appearing for the respondent. No representation for the appellant. 3. The prosecution case is briefly stated as follows: PW3, the Sub Inspector of Police, Kottiyam Police Station, and his party were on patrol at about 4 p.m. on 22.12.1999. Crl.A. No. 695/2006 2 While so, they received reliable information that the appellant was selling arrack at Perayam in Thrikkovilvattom Village. Therefore, soon the police party went to that place. Seeing the police party, the appellant attempted to flee away with the plastic cover in his hand. But, the police party stopped him there. On examining the plastic cover carried by the appellant, 30 covers each containing 100 ml. of liquid were seen in it. On opening and examining one of those covers, arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW3 preparing Ext.P2 series Arrest and Inspection Memos. PW3 opened one more cover of arrack and poured the arrack contained in the two opened covers into a 375 ml. bottle as sample and sealed that bottle. Rest of 28 covers containing arrack were opened and poured the arrack into a 5 litre white jerrycan and sealed the same. The 30 empty polythene covers were put into the plastic cover and sealed the same. Currency notes Crl.A. No. 695/2006 3 worth Rs.300/- were found in the pocket of the shirt of the appellant. All these items were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 and the police party reached Kottiyam Police Station. PW3 registered Crime No. 522 of 1999 of that Police Station in respect of the occurrence. Ext.P3 is the FIR thus drawn by PW3. The appellant, properties and the records were produced before the Judicial First Class Magistrate's CourtII, Kollam. Ext.P4 is the List of Property. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW3 conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and 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 Crl.A. No. 695/2006 4 the Assistant Sessions Court, Kollam. Later, the case was transferred to the Additional Sessions Court (Ad hoc)-I, Kollam. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 3 and marked Exts.P1 to P5 and MOs. I & II 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 not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) 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. It is the prosecution case that the appellant was found in possession of arrack for sale at about 4 p.m. on 22.12.1999 Crl.A. No. 695/2006 5 and he was arrested by PW3 and the properties including the contraband were seized. But, the properties including the sample of the contraband were produced before the court only on 24.12.1999 as could be seen from Ext.P4 List of Property with which the properties were produced before the court. PW3 has also not disputed this fact while he was being examined before the court. He has not given any explanation for the delay that occurred in producing the properties before the court. Similarly, there is no evidence to show as to whether the properties were under safe custody after they were seized on 22.12.1999 and before they were produced before the court on 24.12.1999. PW3 or PW2, the Police Constable claimed to have accompanied PW3 at the time of detecting the offence, did not say before the court as to whether the properties were kept under safe custody or where they were kept during that period. 6. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should Crl.A. No. 695/2006 6 be explanation for the delay when there is delayed production of the property. In this case, no explanation has been given for the delay that occurred in the production of properties before the court. This unexplained delay in reaching the contraband before the court, in the circumstances of the case, is fatal to the prosecution case. The prosecution has a duty to explain under whose custody and where the properties were kept before they were produced before the court. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of Crl.A. No. 695/2006 7 PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out............” Therefore, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand, the excise officials who were examined had no case that the contraband was under their safe custody before they were produced before the court. Therefore, following the decision in **Narayani (supra),** the appellant in this case is also entitled to the benefit of doubt. 7. Exhibit P5 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 the sample and the sample of liquid contained 30.37% by volume of ethyl alcohol. It is also certified in Ext.P5 that the seal on the bottle was intact and found Crl.A. No. 695/2006 8 tallied with the sample seal provided. Whose sample seal was so provided? None of the excise officials examined in this case had a case that the sample seal of the seal affixed on the sample 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. The prosecution did not show by adducing evidence that the sample of the seal claimed to have been affixed on the sample bottle was provided for comparison along with the sample sent to the Chemical Examiner. In these circumstances, there is no assurance that the sample subjected to chemical analysis was really the sample of the contraband allegedly seized from the appellant. Such an assurance is possible only when the sample seal of the seal affixed on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Moreover, the property clerk who was dealing with the properties in the court was not examined in this Crl.A. No. 695/2006 9 case. If such a witness was examined, some light would have been available as to whether a sample seal of the seal affixed on the sample bottle was provided to the Chemical Examiner or not. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the 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 Crl.A. No. 695/2006 10 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.” 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 was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, Crl.A. No. 695/2006 11 in the case on hand, Ext.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal of the offence alleged against him. 10. 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 55(a) 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 Crl.A. No. 695/2006 12