Rajan v. State of Kerala

Crl.A.No.2275/2006 1 _IN THE HIGH COURT OF KERALA AT ERNAKULAM_ _PRESENT_ _THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. TUESDAY, THE 8[TH] DAY OF MARCH 2022 / 17TH PHALGUNA, 1943_ _CRL.A NO. 2275 OF 2006_ _AGAINST THE ORDER/JUDGMENT IN SC 427/2004 OF I ADDITIONAL SUB COURT, THRISSUR_ ## _APPELLANT/ACCUSED:_ _RAJAN, S/O.VELAYUDHAN, KALLIPARAMBIL HOUSE, KOZHOOR DESOM, KUNNAMKULAM VILLAGE._ _BY ADVS. RAJIT RANJIT BABU_ ## _RESPONDENT/COMPLAINANT/STATE:_ _STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM._ _SRI.RANJIT GEORGE – SR.PUBLIC PROSECUTOR_ _THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.02.2022, THE COURT ON 08.03.2022 DELIVERED THE FOLLOWING:_ Crl.A.No.2275/2006 2 ## **J U D G M E N T** The appellant herein is the sole accused in SC.No.427 of 2004 on the file of the First Additional Assistant Sessions Judge, Thrissur. The offences alleged against the appellant are under Sections 8(1) read with Section 8(2) of the Abkari Act. 2. The aforesaid case was registered against the appellant as Crime No.55/2001 of the Kunnamkulam Police Station, alleging that, at about 4.30 am on 22.01.2001 the accused was found in possession of 750ml of arrack in a bottle. The crime was detected when the Sub Inspector of Police, when conducted body search of the appellant, while he was riding a scooter bearing registration No.KL8-P 9206. After registration of the crime, investigation was conducted and final report was submitted before the Judicial First Class Magistrate Court, Kunnamkulam, where the same was taken into file as C.P.No.54 of 2001. Upon completing the legal formalities, the same was committed to the Sessions court and the case was numbered as SC.No.427 of 2004. Later, the same was made over to the First Crl.A.No.2275/2006 3 Additional Assistant Sessions Court, Thrissur and the trial was conducted. 2. In support of the prosecution case, PWs 1 to 5 were examined and Exhibits P1 to P6 were marked. After completion of prosecution evidence the appellant was examined under Section 313 Cr.P.C. and the incriminating materials brought out during the course of trial were put to him. He denied the said materials and pleaded innocence. No defence evidence was adduced. 3. After completion of the trial, upon examination of the materials produced by the prosecution, the Assistant Sessions Court arrived at the finding that the appellant is guilty of the offence punishable under Sections 8(1) and 8(2) of the Abkari Act and accordingly, he was sentenced to undergo simple imprisonment for three months with a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for three months more. The finding of guilty, consequential conviction and sentence are under challenge in this appeal. Crl.A.No.2275/2006 4 4. Heard Sri.Rajit, learned counsel appearing for the appellant and Sri.Ranjit George, learned Public Prosecutor for the State. 5. Learned counsel for the appellant contends that the prosecution failed to establish the guilt of the accused beyond reasonable doubt. According to the learned counsel, going by the prosecution case, it can be seen that the allegation against the appellant is that he was found in possession of arrack. It is pointed out that in Exhibit P3 chemical analysis report, it is only stated that the liquid made available for examination was a clear and colourless liquid alleged to be arrack. The test result was that the Ethyl Alcohol was detected in the sample and the sample of liquid contain 60.65% by volume of Ethyl Alcohol. It was pointed out that even though it is stated that what was provided for examination is a liquid alleged to be arrack, there is no conclusive finding that the same was arrack. As far as the presence of Ethyl Alcohol is concerned, the same would be present even in the case of Indian Made Foreign Liquor (I.M.F.L) and going by Ext.P1 seizure mahazar, it can be seen Crl.A.No.2275/2006 5 that the liquor was found in a bottle of I.M.F.L. In such circumstances, in the absence of any evidence indicating that the liquor allegedly found in possession of the appellant is arrack, the offence punishable under Section 8(1) read with 8(2) of Abkari Act would not be attracted. Apart from the above, it was pointed out that the forwarding note by which the contraband article was forwarded to chemical analyst is also not marked in evidence and therefore there is no proof that the sample which was taken from the possession of the appellant was subjected to chemical analysis which resulted in Exhibit P3 report. In such circumstances, he seeks to set aside the order of conviction passed by the Sessions Court and prays for acquittal of the appellant. 6. On the other hand, learned Public Prosecutor would argue that the prosecution was successful in establishing the guilt of the accused without any reasonable doubt. He relies on the evidence of PW1 and PW5 who were the police officers present at the time of seizure of the article. It is pointed out that the finding in Ext.P3 chemical analysis report corroborates Crl.A.No.2275/2006 6 the evidence of PW1 and PW5 and in such circumstances, no interference is warranted. 7. When we consider the evidence adduced by the prosecution, it can be seen that the main reliance is placed on the evidence of PW1 and PW5. PW5 is the Sub Inspector of Police who detected the offence. He would point out that on 22.01.2001 at 4.30 am, while he along with police party was carrying out patrolling duty, the appellant was found riding a motor cycle along the road. Thereupon, he was asked to stop and when his body was searched a bottle containing 750ml of liquor was found concealed on the waist of the accused. Upon smelling and tasting the said liquor, PW5 was convinced that the same was arrack. Thereafter the articles were seized and seals were affixed thereon. Exhibit.P1 is the seizure mahazar and the accused was produced before the court. On the basis of the same, crime was registered and the investigation was handed over to PW4. 8. PW1 is the police constable attached to Kunnamkulam Police station who was along with PW5 at the Crl.A.No.2275/2006 7 time of detection of the articles. He also gave evidence in tune with the evidence of PW5. PW2 is the independent witness who attested the seizure mahazar. Even though he admitted his signature in Exhibit P1 seizure mahazar, he denied having seen the incident and preparation of mahazar. According to him his signature was obtained at a different place and he had not seen the seizure of the contraband article. PW3 is the witness examined to prove the Exhibit P2 scene mahazar. He also turned hostile to the prosecution, even though he admitted his signature in the said mahazar. PW4 is the investigating officer who completed the investigation and laid charge. These are the materials which the prosecution is relying on, for substantiating the offence alleged against the appellant. 9. The allegation against the appellant is for carrying arrack having a quantity of 750ml. According to the learned counsel, there are absolutely no materials adduced by the prosecution to arrive at the conclusion that the liquor which was found in possession of the appellant was arrack. The only Crl.A.No.2275/2006 8 piece of evidence relied upon by the prosecution is Exhibit P3 chemical analysis report which only indicates that the sample was a clear and colourless liquid containing 60.65% of Ethyl Alcohol. Merely because of the reason that the same was having the features mentioned above, it cannot be treated as arrack. The Sessions Court relied upon the evidence of PW1 and PW5 for the purpose of arriving at the conclusion that the article seized from the possession of the appellant was arrack. 10. On examination of the materials available on record, I find some force in the contention put forward by the learned counsel for the appellant. This is particularly because, arrack is defined under Section 3(6)A of Abkari Act and it contains a detailed definition which reads as follows: “………….. (6A) "Arrack" means any potable liquor other than Toddy, Beer, Spirits of Wine, Wine, Indian made spirit, foreign liquor and any medicinal preparation containing alcohol manufactured according to a formula prescribed in a pharma-copoeia approved by the Government of India or the Government of Kerala, or manufactured according to a formula Crl.A.No.2275/2006 9 approved by the Government of Kerala in respect of patent and proprietary preparations or approved as a bonafide medicinal preparation by the Expert Committee appointed under Section 68A of the Act.” 11. The only evidence available on record is that Exhibit P3 chemical analysis report and in the said report there is no finding that the article found was arrack. As pointed out by the learned counsel for the appellant it only indicates that the liquid made available before them was alleged to be arrack and it contains 60.65% of Ethyl Alcohol. The Sessions Court while rejecting the contention put forward by the learned counsel for the appellant/accused in this regard, relied upon the evidence of PW1 and PW5. In my view, their evidence would only indicate that by smelling and tasting the articles seized, they realized that it was arrack. However, I am of the view that, that by itself is not a conclusive proof to establish that the contraband article seized from the possession of the appellant is arrack. It is discernible from Ext.P1 seizure mahazar that the same was contained in a bottle which was having the label of I.M.F.L. Even though the label affixed on the bottle was that of a brandy, that by itself cannot be treated Crl.A.No.2275/2006 10 as a ground to discard the aforesaid evidence. It is also a relevant aspect to notice in this regard that, the presumption of commission of offence contemplated under Section 64 of Abkari Act is not applicable to the offence under Section 8 of the Act. Therefore, in the absence of a presumption as contemplated under Section 64, the burden to prove the offence is heavily upon the prosecution and it is absolutely necessary for them to establish by adducing evidence that the article seized from the possession of the appellant is arrack is defined under Section 3 (6) A of Abkari Act. In this case, the evidence adduced by the prosecution is not sufficient to arrive at the conclusion to that effect. The only evidence is that of oral evidence of PW1 and PW5 who have stated that by the smell and taste of the liquid they were convinced that the same was arrack. However, the aforesaid witnesses are not experts to differentiate between the arrack and I.M.F.L and a conviction cannot be made solely relying upon such evidence. If it is I.M.F.L, the quantity being only 750ml, the same would not attract any offence. In such circumstances, the conclusion possible is that the Crl.A.No.2275/2006 11 prosecution failed to establish the offence under Section 8 of the Abkari Act. 12. Another illegality pointed out by the learned counsel for the appellant is lack of forwarding note. In **Vijay Pandey v.** **State of Uttar Pradesh [2019(10) SCALE 129]** the Honourable Supreme Court was pleased to observe as follows: “The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be correlated.” 13. Thus it is evident that the prosecution has to establish that the sample which was taken from the possession of the appellant, was subjected to chemical analysis. In order to establish the same, the prosecution has to adduce evidence to prove all sequence of events right from the seizure of the article until it reached for chemical analysis and the report obtained. In this case, no forwarding note evidencing the forwarding of Crl.A.No.2275/2006 12 the contraband article for chemical analysis is marked in evidence. The significance of forwarding note is that, it is expected to contain the specimen impression of the seal used for sealing the sample bottle. In the absence of marking of forwarding note, it cannot be found that the prosecution has proved beyond reasonable doubt that the very samples taken at the spot of occurrence had reached the chemical examiner for analysis in a tamper proof condition. The aforesaid principles were consistently reiterated by this Court in various decisions including **Girish @ Manoj v. State of Kerala [2019 (4) KLT 79], Prakashan v. State of Kerala [2016 (1) KLD 311]** and **Gopalan v. State of Kerala [2016 KHC 541]** . In the aforesaid decisions, this Court categorically held that the failure in producing and marking the forwarding note is a crucial lacuna and the same can form the basis of acquittal of the accused. In this case, on going through the materials adduced by the prosecution, it can be seen that no such forwarding note was produced and in such circumstances, it cannot be Crl.A.No.2275/2006 13 concluded that the prosecution was successful in establishing the guilt of the accused. 14. In such circumstances, I find that the conviction and sentence by the Additional Assistant Sessions Court, Thrissur is not legally sustainable and therefore, liable to be interfered with. In the result, this appeal is allowed. Conviction and sentence imposed upon the appellant herein by the judgment dated 31.10.2006 in SC.No.427/2004 passed by First Additional Assistant Sessions Judge, Thrissur is hereby set aside and the appellant is acquitted of all the charges. Sd/- **ZIYAD RAHMAN A.A. JUDGE** DG/18.2.22