RadhaKrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 12TH DAY OF JULY 2017/21ST ASHADHA, 1939** ## **CRL.A.No. 366 of 2007 ( )** **--------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 429/2001 of ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 24-01-2007** **APPELLANT(S)/ACCUSED: --------------------** **RADHAKRISHNAN, S/O.KUTTAN, MUDUMPIL VEEDU, NEAR THEMBAMUTTOM SIVA TEMPLE,, THALAYAL DESOM, ATHIYANNOOR VILLAGE,, NEYYATTINKARA TALUK.** **BY ADVS.SRI.R.T.PRADEEP SRI.V.VIJULAL** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **THE STATE OF KERALA, REPRESENTED** **BY THE DIRECTOR GENERAL OF PROSECUTION,, HIGH COURT OF** **KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. K.K. SHEEBA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** ## **K.P. JYOTHINDRANATH, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.366 of 2007** **- - - - - - - - - - - - - - - - - - - - - - Dated this the 12[th] day of July, 2017** ## **J U D G M E N T** This appeal is preferred against the judgment of conviction and sentence dated 24.01.2007 made in SC No.429 of 2001 on the files of the Court of the Additional Sessions Judge for the Trial of Abkari Act Cases, Neyyattinkara. The conviction is under Section 58 of the Abkari Act and sentence is to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- with default rigorous imprisonment for a period of six months. 2. The prosecution case in a nut shell is as follows: On 23.11.1998 at about 12.15 p.m, the appellant/accused was found in possession of 10 liters of arrack in a black jerry can and thereby committed the offence. The accused was arrested, contraband was seized and a crime was registered. After investigation, final report Crl.A.No.366 of 2007 2 was filed. Prosecution altogether examined five witnesses and Exts.P1 to P7 were marked. MO1 also identified. On the side of the defence, DW1 to DW3 were examined. After appreciating the evidence, the court below convicted the accused and sentenced as stated above. 3. When the appeal came up for hearing, the learned counsel appearing for the appellant submitted before this court that in this case, there is violation of the statutory requirements. It is also submitted that no document was produced to prove that an application was filed before the court by the investigating officer for lifting sample as well as sending the same for analysis. It is submitted that as per the dictum laid down in **Sasidharan v. State of Kerala [2007(1) KLT 720]** , prosecution has a duty to prove that the sample taken from the contraband liquor seized from the accused was reached the hands of the Chemical Examiner in a foolproof condition. It is also submitted that the learned Magistrate has to take care of recording the contemporary proceedings evidencing the drawing of Crl.A.No.366 of 2007 3 sample and sending the same to the Chemical Examiner in a tamper proof condition. The main submission is that when such a proceeding is not before the court, a conviction upon an oral testimony of the Property Clerk is not proper. 4. In this case, it came out in evidence that appellant is a Lineman working in KSEB. PW1 is the witness in the mahazar and he was declared as hostile. PW2 was the Preventive Officer attached to Thirupuram Range and the evidence was that on 23.11.1998 at about 12.15 p.m., he went along with the Excise Inspector, Viswambharan for patrolling duty and while traveling so, when they reached near Thembamuttom - Thalayal L.P. School, they found the accused with a can having a capacity of 10 liters and the vehicle stopped, he was intercepted and on examination it was found that the can contained arrack. The accused was arrested and a mahazar was prepared. Witness deposed that he was a signatory to the mahazar, signature was identified and marked as Ext.P1. The can in which arrack contained is marked as MO1. He identified Crl.A.No.366 of 2007 4 the person who was arrested on that day. The suggestion was put to him that accused was forcefully taken into the jeep and thereon false case has been hoisted. Suggestion denied. PW3 deposed that he was the Excise Inspector and he also deposed regarding the detection and arrest and also regarding the preparation of seizure mahazar, Ext.P1. Arrest memo was marked as Ext.P2. Occurrence report was marked as Ext.P3. Remand Report was marked was Ext.P4, property list was marked as Ext.P5 and the chemical analysis report was marked as Ext.P6. He also identified MO1 and the allegation that the accused was forcefully taken from Thembamuttom junction was denied. PW4 is the Excise Inspector who filed the final report after investigation. 5. PW5 is the Thondi Clerk attached to Judicial First Class Magistrate Court III, Neyyattinkara. He deposed that he was the Thondi Clerk on 23.11.1998. He deposed that he was the person who received the property in this matter and it was entered as T No.375/98. PW5 further deposed Crl.A.No.366 of 2007 5 that entry is in his handwriting and the entry is marked as Ext.P7 and from the cannas he took 150 ml. of the liquor in a bottle as sample as per the direction of the court and also deposed that the said direction will be seen in the forwarding note. He further deposed that as per Ext.P7 it can be seen that sample bottle as well as the the liquid was forwarded for examination. The endorsement is therein in Ext.P7. He further deposed that there was no entry made in Ext.P7 regarding the extraction of sample. As already stated the main aspect argued before me is regarding the lack of contemporary proceeding. Counsel for the appellant is mainly relying upon paragraph 11 of the decision in Sasidharan's case (supra) which is stated as follows: “It is on account of the aforementioned deficiencies in the evidence that the Prosecution has to fail in this case. Committing Magistrates have to take care that contemporary proceedings evidencing the drawing of sample and sending the same to the Chemical Examiner in a tamper-proof condition are recorded in the proceedings before court. Sessions Judges trying such cases also should ensure that the Crl.A.No.366 of 2007 6 concerned member of the staff, who had drawn the sample and dispatched the same to the Chemical Examiner duly packed and sealed under the covering letter of the Magistrate, is examined before court during trial. The Public Prosecutor in charge of the case also had a duty to file an additional witness-list for examining the thondy section clerk (property clerk) concerned so as to establish the nexus between the contraband substance and the accused.” 6. In this case, on the basis of the dictum laid down by this Court the materials has to be appreciated. Surely, this is a rare case, where property clerk came on the box and deposed. How far the evidence of the property clerk will be sufficient to convict the accused is the question to be answered. Admittedly, this is a case, where there is no forwarding note marked. 7. In the decision reported in **Kumaran P. v. State of Kerala & Anr.** [2016 (5) KHC 632], even the lacuna in a forwarding note can be corrected by the examination of thondi clerk. As per the evidence of thondi clerk, he Crl.A.No.366 of 2007 7 deposed before the court that she was working at Judicial First Class Magistrate's Court-I, Neyyattinkara on 23.11.1998. She categorically deposed before the court that she was the person who received the thondi article detailed in Ext.P5 and further evidence is that she had lifted 150 ml of arrack from the contraband. But it is an admitted case that no judicial order produced or marked before the court. It can be further seen that there was no request for lifting any sample by the court. This aspect is highly relevant, when as per the provisions of Kerala Chemico Legal Examination Rules, no where it is stated that the sample can be ordered to be lifted to by a suo moto proceedings. Under the said Rules in17(b)(2) it is stated as follows:- In all miscellaneous cases, where sample or thondi articles are required to be examined by the Chemical Examiner, the concerned Police Officer or Excise Officer shall submit along the charge sheet prescribed application before the court for forwarding the articles to the Chemical Crl.A.No.366 of 2007 8 Examiners' Laboratory for examination or analysis as the case may be. 8. The aspect in this case is that no sample is seen forwarded to the court for analysis. But it is a case where the sample was seen lifted by the Magistrate's orders. But the said order is not before the court. The explanation given by the property clerk is that the said order is in the request forwarded to the chemical analyst, which is an indication that not even a copy of forwarding note is seen kept in the court. It is a strange situation i.e., even the forwarding note's copy is not marked, which shall be only succeeded an order of the Magistrate to take sample and forward. It cannot be written in a forwarding note, i.e., the forwarding note can be prepared only after a judicial order to lift the sample and to forward. 9. Thus, the point to be considered is whether the oral evidence of PW5 can be a substitute for production of a judicial order. Surely when Chemico-legal Examination Rules is not provided for suo motu taking of the sample and Crl.A.No.366 of 2007 9 sending the same and when the request for taking sample and sending the same is conspicuously absent and further when oral evidence of the Property Clerk alone is therein regarding the existence of such a judicial order to lift sample, the question is whether it will be proper to convict the accused. Here is a case where no request was produced. If the original is missing, a duplicate will be available with the prosecution. That also not seen produced. Now in substitution of the judicial order, the court below relied upon the oral testimony of the property clerk. When the original judicial order is missing, it cannot be assumed or presumed on the basis of the oral testimony of the Property Clerk that such an order was in existence. A judicial order can be proved only by producing a copy of the judicial order. An oral evidence of a clerk will not be a substitute or sufficient for the same. Under such circumstances, benefit of doubt can be given to the appellant herein. This appeal is allowed setting aside the conviction and sentence imposed against the appellant. The 10 Crl.A.No.366 of 2007 bail bond, if any, executed by the appellant is cancelled and he is set at liberty. Sd/- **K.P. JYOTHINDRANATH, JUDGE** //True copy// P.A. TO JUDGE DG/skvshg/