Rajan, S/o Hamsipanicker v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** **CRL.A.No. 1122 of 2005 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 1147/2000 of ADDL.SESSIONS JUDGE FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA DATED 09-05-2005** **APPELLANT(S)/ACCUSED: -----------------------RAJAN, S/O.HAMSIPANICKER, MANNANVILA VEEDU, AYIROOR, PERUMKADAVILA.** **BY ADV. SRI.BLAZE K.JOSE** **RESPONDENT(S)/COMPLAINANT:** **----------------------------** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA REPRESENTING CHARGE SHEET LAID BY THE EXCISE INSPECTOR, AMARAVILA EXCISE RANGE.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1122 of 2005 ---------------------------------------------Dated this the 21[st] day of January, 2016 ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.No.1147/2000 of the Additional Sessions Judge (Abkari Cases), Neyyattinkara u/s.55(a) of the Abkari Act. The charge is that on 5.11.1997, the Excise Inspector of the Amaravila range was conducting patrol duty along with other excise officials at Perunkadavila village and when they reached at the Nannottukonam Panchayat well by the side of Aruvipuram-Ayiroor road in Perumkadavila village, the appellant was found carrying a jerry can in his hand. On seeking the excise officials, he became frightened and tried to escape, then the Excise Inspector intercepted him and Crl.A.No.1122/2005 2 inspected the jerry can and detected three litres of arrack in it. The contraband article was seized after preparing a mahazar, reaching at the Excise Office, he registered a crime and occurrence report. After completing investigation, he laid charge before Judicial First Class Magistrate -I, Neyyattinkara, from there it was committed to Sessions Court, Neyyattinkara for trial and disposal. 2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P4 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard u/s.232 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant u/s.55(a) of the Abkari Act and sentenced to rigorous Crl.A.No.1122/2005 3 imprisonment for one year and fine of 1 lakh, in default₹ simple imprisonment for two months. Being aggrieved by that, he preferred this appeal. 3. The learned counsel for the appellant contended that there is no independent corroboration to the alleged seizure. The investigating officer has not taken any sample from the seized article. Forwarding note was also not prepared in this case. In the absence of such evidence, the appellant is entitled to get the benefit of doubt. 4. The learned Public Prosecutor submitted that forwarding note was produced in the trial court but there was no sample seal. 5. Prosecution examined PW3, who was the Excise Range Officer as an occurrence witness. The evidence of PW3 shows that on 5.11.1997 he was conducting patrol duty Crl.A.No.1122/2005 4 within his jurisdiction. When he reached at the place of occurrence, the appellant was found in possession of MO1, upon suspicion, he inspected MO1 and detected three litres of arrack in it. The independent witnesses present there saw the seizure of arrack. For that, he prepared Ext.P1 mahazar. The accused was arrested and reaching at the Excise Office, he registered a crime and occurrence report. Ext.P2 is the crime and occurrence report. The accused was produced before Court. Ext.P3 is thondy list and Ext.P4 is the chemical analysis certificate. During cross examination, PW3 categorically admitted that he never took any sample from MO1. 6. The independent witnesses PW1 and PW2 did not support the evidence of PW3. Both witnesses denied their signature in Ext.P1. But, PW4 Preventive Officer supported the evidence of PW3. According to PW4, MO1 Crl.A.No.1122/2005 5 was sealed at the place of occurrence, thereafter prepared Ext.P1 mahazar. MO1 and the accused were produced in the Excise Office. PW5 conducted investigation and laid charge before Court. He arrived at the place of occurrence and questioned the witnesses. PW5 also has no case that he had taken sample in this case. A close scrutiny of the evidence of these witnesses, it is true that the excise officials had never taken sample from the seized article. The property was in the custody of PW3 and PW5 until they were produced before Court. There was no explanation by the prosecution how Ext.P4 certificate was obtained. In Ext.P4, it is stated that one sealed bottle containing 150ml clear and colourless liquid alleged to be arrack involved in Crime No.116/1997 of Amaravila Excise Range was received for chemical examination. The seal on the bottle was intact and found Crl.A.No.1122/2005 6 tallied with the sample seal provided. 7. The report shows that ethyl alcohol was detected in the sample and the sample of liquid contained 29.36% of ethyl alcohol. When the Excise Officials failed to take sample, it is the duty of the prosecution to explain as to how they took sample. In such circumstances, the prosecution has to establish that the contraband liquor seized from the custody of the appellant was ultimately forwarded to the chemical examiner's lab without any tampering. They neither stated that the entire contraband article was produced before chemical analysis lab nor sample was taken. This create a doubt in the credibility of the prosecution case. 8. This Court in **Ravi** v **State of Kerala** [2011(3) KLT 353] held as follows: “It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Crl.A.No.1122/2005 7 Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature 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 by change of hands in a tamper-proof condition. (Vide - State of Rajasthan v. Daulath Ram and Valsala v. State of Kerala) No conviction can be entered against the accused in a prosecution as the present one 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 (See - Sathi v. State of Kerala) and Sasidharan v.State of Kerala. There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant. Analysing the evidence of the prosecution witnesses, it is clear that there is no satisfactory explanation with regard to affixing seal in the sample. It is the primary Crl.A.No.1122/2005 8 responsibility of the prosecution to prove that they took sample from the seized article and it was properly sealed and produced before chemical examiner's lab and obtained a report. Therefore, the evidence in Ext.P4 chemical examination certificate cannot be used against the appellant for a conviction. The trial Court failed to appreciate that position. Therefore, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the Additional Sessions Judge for Abkari Cases, Neyyattinkara u/s.55(a) of the Abkari Act are set aside and the appellant is acquitted and this appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl.A.No.1122/2005 9 Crl.A.No.1122/2005 10