P.V. Haridasan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD FRIDAY, THE 7TH DAY OF MARCH 2014/16TH PHALGUNA, 1935 CRL.A.No. 345 of 2004 (B) -------------------------- SC 254/2000 of ADDITIONAL SESSIONS COURT (ADHOC-I), MANJERI CP 22/1999 of JUDICIAL FIRST CLASS MAGISTRATE COURT,NILAMBUR APPELLANT(S)/ACCUSED.: -------------------------------------- P.V.HARIDASAN, S/O.VELAYUDHAN, PANANGATTUPARAMBIL VEEDU, OORAKAM AMSOM, DESOM THRISSUR TALUK. BY ADVS.SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) SMT.P.MAYA RESPONDENT(S)/COMPLAINANT.: ------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SHRI K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-02-2014, THE COURT ON 07-03-2014 DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.345 of 2004** **-------------------------------------Dated this the 7[th] day of March, 2014.** ## **JUDGMENT** Appeal filed under Section 374(2) of the Code of Criminal Procedure (for short, “Cr.P.C.”). 2. Trial court found the accused guilty of offence under Section 55(a) of the Abkari Act (for short, “the Act”) and sentenced him to undergo rigorous imprisonment for ten years and to pay a fine of `2,00,000/-. This conviction and sentence is challenged in this appeal. 3. Prosecution case, in brief, is that at about 9 a.m. on 15.11.1997, the appellant was found transporting 250 litres of spirit in the secret chamber attached to a jeep bearing registration No.KL 8B-3749 through Vazhikadavu Check Post. Prosecution further contended that the appellant was driving the jeep at the material time. In order to establish the guilt of the appellant, six witnesses were examined on the side of the prosecution and six documents were marked. MO1 is a sample bottle allegedly taken at the time of detection of the offence. There was no defence evidence adduced. 4. Heard the learned counsel for the appellant and the learned Public Prosecutor. 5. Learned counsel for the appellant contended that conviction of the appellant is unsustainable in view of settled legal principles relating to 2 Crl.Appeal No.345/2004 drawing up of sample and sending the same for chemical analysis. According to him, serious infirmity in the prosecution case was overlooked by the learned trial Judge. Before considering the legal issues involved, it will be apposite to analyse the evidence in the case. 6. PW1 was working as Preventive Officer, Excise Department at the material time. He was discharging his duty in the Check Post at Vazhikadavu. On 15.11.1997 at about 9 a.m., the jeep driven by the appellant came to the Check Post. When the Excise Officers were inspecting inside the jeep through the rear portion of it, the appellant, who was in the driver seat, suddenly switched off engine and ran into the forest. He was apprehended and brought back to the jeep. On examination, it was found that secret chambers were made in the jeep, close to the platform of the jeep. When the lids seen in the secret chambers were removed, the detecting officer could find spirit kept therein. About 250 litres of spirit was transported by the appellant. It is the prosecution case that two bottles, each having 750 ml. volume, were completely filled up with spirit, corked and sealed as samples. Thereafter, Ext.P1 mahazar and Ext.P2 arrest memo were prepared from the place of detection itself. Accused was taken to the Office of PW1 and Ext.P3 occurrence report was prepared. On the date of detection itself, Ext.P4 forwarding note and Ext.P5 thondy list were submitted to the court. 7. PW2 was the Excise Guard, who was in the search party of 3 Crl.Appeal No.345/2004 PW1. He also testified in tune with the testimony of PW1. PW2 also stated that two bottles, apiece having a volume of 750 ml., full of spirit were taken as samples. 8. These two witnesses were cross-examined at the trial to establish that there were procedural irregularities in the detection and seizure. Further, questions were put to these witnesses to show that identity of the vehicle and that of the owner was not established and the appellant was falsely implicated. 9. PW3 is an independent witness, who testified that he found the Excise Officers examining a jeep, which carried illicit spirit. But, he failed to support the prosecution case that the accused was the person, who was driving the jeep at the material time. PW4 was the Excise Inspector at the relevant time. He received the accused and material documents prepared by PW1. He prepared the forwarding note (Ext.P4) and property list (Ext.P5) and produced them before the court on the same day. PW5 submitted the final report after completion of the investigation. PW6 was working as Junior Superintendent in the Judicial First Class Magistrate Court, Nilambur on 15.11.1997. He testified that he received the property involved in Crime No.66 of 1997 (property involved in this case). According to his examination-in-chief, the properties as described in Ext.P5 were received by him. He forwarded a sample bottle for chemical analysis, having volume of 750 ml. in which 500 ml spirit was filled up. 4 Crl.Appeal No.345/2004 10. Ext.P1 is the mahazar prepared by PW1 at the place of detection of the offence. It is mentioned in Ext.P1 that he took out two samples in bottles having volume of 750 ml. each and the bottles were fully filled up with the contraband. Ext.P5 thondy list also shows that two samples were drawn up in 750 ml. bottles with full of spirit. But, Ext.P4 forwarding note shows that the article sent up for analysis to the chemical lab was 500 ml. spirit contained in 750 ml. volume bottle. This aspect has come out through the testimony of PW6 as well. 11. Learned counsel for the appellant contended that this is a serious infirmity, which was ignored by the trial Judge in spite of bringing it to the notice of the court. My attention was drawn to paragraph 14 of the judgment of the learned trial Judge. She had discussed issues pertaining to the identity of samples taken from the place of detection and that was sent up for analysis through the court. The incongruity in volumes of samples allegedly sealed at the time of detection and that was sent up for analysis through the court was considered by the trial Judge and found that the contraband might have been re-sampled from the court. In order to dispel any doubt regarding this aspect, I passed an order on 13.02.2014 calling for the records relating to Crime No.66 of 1997 of Nilambur Excise Range from the court of learned Magistrate. This was done to avoid a possible dispute that at the time of committal of the case to the Court of Sessions, Manjeri, relevant records might not have been sent up to the 5 Crl.Appeal No.345/2004 Sessions Court. I have carefully perused the entire records submitted by the learned Magistrate in obedience to the order passed by this Court on 13.02.2014. There is no record to show that the sample taken and sealed by PW1 was re-packed or re-sampled from the court of learned Magistrate. Therefore, going by the evidence of PW6, it can only be seen that a bottle containing 500 ml. spirit kept in 750 ml. bottle was sent up for analysis. But, this is not supported by the recital in Exts.P1 and P5. Further, PWs 1 and 2 have a case that they took 750 ml. spirit as sample at the time of detection of the offence. In this context, it has to be stated that there is force in the argument of the learned counsel for the appellant that the identity of sample allegedly taken at the time of detection and that is sent up for analysis has not been properly established. In this context, learned counsel for the appellant places reliance on a decision rendered by the learned Single Judge of this Court in **Sathi v. State of Kerala (2007 (1) KLT SN 57, Case No.82).** Relevant portion, which is necessary for our purpose, reads as follows: _“The prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the chemical examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so when the sample might have changed several hands before it reached the hands of the chemical examiner._ 6 Crl.Appeal No.345/2004 _When there is not even an endorsement on any of the court records to the effect that sampling was done on a particular day and that the sample so drawn was forwarded to the chemical examiner's laboratory, there is no question of the court presuming that official acts were regularly performed. It is only when official acts are shown to have been performed, can the court presume that such official acts were regularly and properly performed. It is this link evidence which is missing in this case. In such circumstances it may not be safe to record a conviction against the accused who is definitely entitled to the benefit of doubt arising therefrom.”_ This principle was reiterated in **Ravi v. State of Kerala (2011 (3) KLT 353)** by a Division Bench of this Court. Therefore, I have no hesitation to hold that the prosecution failed to establish that the sample allegedly taken at the time of detection of the offence is the same as that is sent up for analysis. Ext.P6 chemical analysis report shows that only 500 ml. colourless liquid was sent up for analysis, which goes contrary to the recitals in Exts.P1 and P5. Learned counsel for the appellant would contend that possibility of sending up another sample for analysis involved in another case cannot be ruled out. I am of the definite view that the detecting officers and Investigating Officers dealing with offences under the Act should be more vigilant and careful while handling cases of wide ramifications. Callous and half-hearted investigation would certainly result in acquittal of the accused for technical reasons. The importance of 7 Crl.Appeal No.345/2004 bestowing utmost attention to the principles of law while investigating offences of this kind have been repeatedly stated by this Court. It is unfortunate to note that those principles have not been percolated to the Officers at the grass root level. However, this Court is unable to shut out its eyes to the glaring infirmity in the prosecution case, which certainly should enure to the benefit of the accused. In the result, the appeal is allowed. Conviction of the appellant under Section 55(a) of the Abkari Act in S.C.No.254 of 2000 on the file of Additional Sessions Court (Adhoc-I), Manjeri is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If any amount has been deposited by the appellant as a condition for securing bail, it shall be returned to him. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**