Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **TUESDAY, THE 11TH DAY OF FEBRUARY 2014/22ND MAGHA, 1935** **CRL.A.No. 319 of 2004 (B) -------------------------(JUDGMENT IN SC 165/2001 OF THE ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA DATED 12.2.2004)** **CP 40/2000 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTI,PATHANAMTHITTA)** **APPELLANT/ACCUSED:** **-----------------** **RAJAN, S/O.GOPALAKRISHNAN, KARINGATTIL VEEDU, EDAYARANMULA KARA, ARANMULA VILLAGE KOZHENCHERRY TALUK.** **BY ADV. SRI.MVS.NAMBOOTHIRY** **RESPONDENT/COMPLAINANT:** **-----------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SCL.** ## **A.HARIPRASAD, J.** ## **-----------------------------------------------Crl. Appeal No.319 of 2004** **-----------------------------------------------Dated this the 11[th] day of February, 2014.** ## **J U D G M E N T** Appeal filed under Section 374 Cr.P.C. The accused in S.C No.165/2001 was convicted by Additional District and Sessions Judge for an offence punishable under Section 8(2) of the Abkari Act. Hence this appeal. 2. Prosecution case in nutshell, is as follows : On 24-11-1997, the Excise Inspector (PW1) and his party was patrolling at about 6.15 p.m. He saw the appellant walking through a ridge in a paddy field from north towards the Panchayath road on the south. He was carrying a keg in his hand. On seeing the Excise party, the appellant became panicky and when the Excise party went close to him, he threw away the keg into the paddy field and ran away. The detecting officer and party could not arrest the accused from the place. They took out the can and on inspecting, the liquor was identified to be illicit arrack. The keg contained 500 ml of illicit arrack. PW's1 to 5 were examined on the side of prosecution. Exts.P1 to P7 marked. MO1 is also marked. On the basis of the **Crl. Appeal No.319 of 2004 2** evidence adduced by the prosecution, the trial court convicted the appellant to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.1,00,000/- and in default to undergo simple imprisonment for a period of two years. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. Learned counsel for the appellant contended that the court below committed grave error in appreciating the evidence and applying the legal principles. According to him, the appellant was arrested on a mere suspicion. Identity of the accused involved in the case was not established. At any rate, the prosecution failed to convince the court that the appellant was the person, who allegedly carried the contraband had escaped from the place on seeing the Excise party. 5. Learned Public Prosecutor, per contra would contend that testimony of PW's 1, 2 and 5 would reveal the identity of the appellant. PW1 is the detecting officer. According to the evidence of PW's1 and 2 they saw a person walking through a ridge on the date **Crl. Appeal No.319 of 2004 3** of occurrence at about 6.15 p.m. They sighted him at about 15 metres. On seeing the Excise party, he took to his heels after jettisoning the keg. PW's1 and 2 admitted in cross examination that they had no previous acquaintance with the appellant. Ext.P1 is the document, according to the prosecution, contemporaneously prepared at the time of incident. The name of the accused mentioned therein is 'Malayil Veettil Rajan, approximately aged 44 years'. His name was confirmed from two independent witnesses present there and who signed on Ext.P1. They have been examined as PW's 3 and 4. Both of them turned hostile to the prosecution. Their testimony cannot be relied on by the prosecution to establish the identity of the accused. The appellant has a specific case that his actual name is 'Karingattil Rajan'. PW1, when cross examined deposed that 'Malayil Rajan' is the same person known as 'Karingattil Rajan' and this fact was known to him at the time of arrest itself. Neither in Ext.P1 seizure mahazar, nor in Ext.P2 crime and occurrence report or in Ext.P4 arrest memo, the name 'Karingattil Rajan' figured in. Learned Public Prosecutor submitted that the identity of the accused **Crl. Appeal No.319 of 2004 4** from the dock is the substantive evidence. This proposition of law is indisputable. However, it is axiomatic that the substantive evidence tendered by the prosecution should be credible and its probative value should inspire confidence in the mind of the court. Not only the testimony of PW1, but also that of PW2, who was present at the time of alleged detection, do not inspire confidence in the mind of the court to find that the identity of the appellant was properly established in this case. PW5, the officer who laid the charge also had not taken any step to properly identify the accused. This contention of the accused is having some merit. 6. Learned counsel for the appellant contended that the samples taken from the contraband and sent for analysis was not properly handled. Ext.P6 forwarding note was produced after two days of the incident. Even if we consider that the delay is pardonable, there is a glaring infirmity in Ext.P6, contended the learned counsel for the accused. The analysis report Ext.P7 shows that the seal affixed on the bottle send for analysis was intact and found tallied with the samples seal provided. However, in Ext.P6, no **Crl. Appeal No.319 of 2004 5** mark of sample seal was provided. The provisions in Kerala Chemico-Legal Examination Rules, 1959 (in short 'the Rules') were pressed into the service to contend that the mandatory requirements therein were not complied with. In Section II of the Rules, it is mentioned that the Magistrate and Police Officers shall be guided by the rules in this Section with regard to the transmission of substances to the Chemical Examiner in cases of suspected poisoning, or other cases in which the aid of the Chemical Examiner is considered necessary. In Rule 16, it is mentioned that all parcels sent for analysis shall be carefully sealed by the despatching officer and packed in such a manner that they cannot be opened without destroying the seals. Further, it says that the seal used shall be the same throughout, either a private seal or an official seal which is kept in safe custody. It goes on to say that a letter of advice shall be separately forwarded to the Chemical Examiner and the letter shall contain : - _“ (a) an impression of the seal used in closing the packets and description thereof;_ ## **Crl. Appeal No.319 of 2004 6** - _(b) a list of the articles forwarded and a statement as to how the articles have been forwarded. The numbers given to the articles on the list must correspond to the numbers on the labels;_ - _(c) information as to whether any of the weapons, clothes, etc., are to be returned after examination;_ - _(d) information as to how many persons or animals were affected, how many died, and Section of the Indian Penal Code under which any charge, is being brought._ - _(e) crime number;_ - _(f) the date of posting, if any, of the case in the court;_ - _(g) information as to whether all or any of the stains were exposed to the sun or rain, and if so for how long. If exposed to rain, whether the downpour was heavy or light. In the case of clothes, if any attempt has been made to wash them. If it is stained soil, the nature of the soil-whether loose and porous, or hard, whether barren or cultivated. In the case of stained leaves, the names of the trees are plant to which the leaf belonged.”_ **Crl. Appeal No.319 of 2004 7** 7. Rule 17 (b) (1) reads as follows : _“ In forwarding any miscellaneous article such as mentioned herein before, the Magistrates, Police Officers or Excise Officers as the case may be shall follow the instructions laid down in Rule 30 of Section III so far as they may be applicable and shall be careful to include in their letter or advice to the Chemical Examiner information as to the nature and object of the examination required, and to furnish any other information likely to assist the Chemical Examiner in making the required Examination.”_ It is also provided in the rules that the Excise officers shall forward articles seized under the provisions of the Abkari Act in force through the Magistrates within whose jurisdiction the offence has been committed. 8. Rule 30 specifies that the suspected substances may be forwarded to chemico-legal examiner by post, by passenger train, by steamer, or in charge of a constable. The procedure to be followed in such forwarding has been specifically narrated in Rule 30. **Crl. Appeal No.319 of 2004 8** Considering the provisions in the Rule, it appears that the seal which is said to have been affixed on the bottle should be one and the same that was affixed on the forwarding note. To ensure that fact, the investigating officer should have affixed the mark of the seal on the copy of forwarding note also. Ext.P6 does not contain such a seal. In order to buttress a contention that this infirmity is fatal to prosecution case, an unreported judgment in Crl.Appeal No.839/2003 rendered by a learned Single Judge has been relied on by the defence. In a similar situation when it was found that the sample seal was not provided in the forwarding note, this court opined that the court was not in a position to understand on what basis the chemical examiner reported that the seal on the sample bottle was tallied with the seal provided. Division Bench of this court in _**Ravi v. State of Kerala (2011(3) K.L.T 353)**_ held that the prosecution is duty bound to produce the articles recovered forthwith before the court. It is further observed that there must be link evidence to establish that the article allegedly recovered from the accused is the same as that ultimately reached the hands of the **Crl. Appeal No.319 of 2004 9** chemical examiner. In other words, the chance of tampering with or meddling with the articles should not be a possibility. In the absence of any reliable evidence in this regard, it can only be held that the conviction cannot be sustained. 9. Learned counsel for the appellant argued that the accused was arrested on 3-12-1997. Thought the alleged incident occurred on 24-11-1997. Only on 3-12-1997 Ext.P1 mahazar was produced before the court. According to the learned defence counsel this is a serious defect in the prosecution case. I am afraid, I may not agree with the contention because no apparent prejudice is suffered by the accused on account of the delay in producing Ext.P1. It appears that Ext.P1 was prepared on the date of occurrence since the incorrect name of the appellant is seen mentioned in Ext.P1 even on 3-12-1997. If there was an addition of the real name of the accused with family name, then it could have been argued that Ext.P1 produced in court is the product of manipulation. 10. It is to be remembered that the punishment for the alleged offence is very harsh. Therefore, it is to be seen that the **Crl. Appeal No.319 of 2004 10** quantity and quality of evidence expected of from the side of prosecution is of a higher degree and magnitude. In the absence of any reliable evidence, I do not find that the conviction of the appellant by the trial court under Section 8 of the Abkari Act is legally proper and justifiable. Therefore, the appeal is to be allowed. In the result, the appeal is allowed. The conviction of the appellant under Section 8 of the Abkari Act in S.C No.165/2001 on the file of the Additional District and Sessions Judge (Adhoc I), Pathanamthitta is hereby set aside. The appellant shall be set free, if not wanted in any other case. His bail bond shall be cancelled. All pending interlocutory applications will stand dismissed. Sd/- **A.HARIPRASAD, JUDGE.** //True Copy// P.A to Judge amk