Rajendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942** ## **CRL.A.No.621 OF 2007** **AGAINST THE JUDGMENT IN SC 1145/2001 DATED 31-01-2007 OF ADDITIONAL SESSIONS COURT-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA AGAINST THE JUDGMENT IN CP 18/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **RAJENDRAN, S/O. VELAPPAN, MELEPUTHEN VEEDU, ERAMPAZHYNJY, PARASUVAIKKAL, NEYYATTINKARA (TALUK).** **BY ADV. SRI.BLAZE K.JOSE** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA,** **REP. BY THE EXCISE INSPECTOR, AMARAVILA EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2020, THE COURT ON 10-08-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.621 OF 2007** **2** ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.621 of 2007 ----------------------------------------------- Dated this the 10[th] day of August, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.1145 of 2001 on the file of the Court of the Additional Sessions Judge, Neyyattinkara. 2. The prosecution case is that, on 05.08.2000, at about 11.15 hours, at the varamba of the canal which leads from the place Kalloorpalam to Arayoor Temple, PW3 Excise Circle Inspector found the appellant/accused in possession of a can containing ten litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW5 and marked Exts.P1 to P5 documents and MO1 material object. No evidence was adduced by the accused. 5. The trial court found the accused guilty of the offence punishable under Section 58 of the Abkari Act and convicted him **CRL.A.No.621 OF 2007** **3** thereunder and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW3 is the Excise Circle Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW2 was the Preventive Officer who was in the excise party led by PW3. His evidence corroborates the testimony of PW3 with regard to the material particulars of the occurrence. 9. PW1 is the independent witness examined by the prosecution. He denied the signature in Ext.P1 seizure mahazar. He has not given any evidence regarding the alleged incident. 10. PW4 is the Excise Inspector who registered the case against the accused. PW5 is the Excise Inspector who conducted the investigation of the case. 11. Ext.P4 is the chemical analysis report received in respect of the sample of liquid which was forwarded from the court for analysis. It shows that the sample of liquid contained 24.85% by volume of **CRL.A.No.621 OF 2007** **4** ethyl alcohol. 12. After perusing the evidence adduced by the prosecution and the judgment of the court below, I find it difficult to sustain the conviction entered against the appellant. The reasons are as follows. 13. PW3 has given evidence that he seized the can containing arrack from the possession of the accused and that he affixed seal on the can. He has also given evidence that he produced the can seized from the possession of the accused before the Excise Inspector (PW4). 14. Ext.P2 is the crime and occurrence report registered by PW4 Excise Inspector. The description of the can, which was produced before him by PW3, given in Ext.P2 report does not show that it was sealed or that there was any seal on it. Ext.P3 is the property list by which PW4 produced the can before the court. The description of the can given in Ext.P3 property list shows that it was sealed. This indicates that no seal was affixed at the spot of the occurrence on the can allegedly seized from the possession of the accused and there was no seal on the can when it was produced by PW3 before PW4 but the seal was affixed on the can before it was produced before the court as per Ext.P3 property list. 15. PW3 has stated on cross-examination that sample of the liquid from the can was not taken at the spot of the occurrence. **CRL.A.No.621 OF 2007** **5** Ext.P3 property list also shows that no sample was produced before the court. Then, it is not known who had drawn the sample of the liquid from the can and when and where the sample was taken. The trial court has found that the sample was drawn by the court concerned. This finding made by the trial court is only an assumption. There is absolutely no evidence to find that the sample of the liquid from the can was drawn by the court concerned. The prosecution has not produced any record relating to drawing of sample by the court concerned. The property clerk of the Magistrate's Court concerned was also not examined by the prosecution. Therefore, there is no assurance that the sample which was forwarded by the court to the chemical examiner was sample of the liquid taken from the can which was allegedly seized from the possession of the accused and which was produced before the court by PW4. 16. PW4 Excise Inspector has given evidence that he had made requisition to the court for forwarding the sample for chemical analysis. However, no such requisition (forwarding note) was marked in evidence. There is also no evidence to find that the forwarding note allegedly prepared by PW4 for sending the sample for analysis contained the specimen of the seal which was allegedly affixed by PW3 on the can which was seized from the possession of the accused. **CRL.A.No.621 OF 2007** **6** 17. PW3 has stated on cross-examination that it was the metal seal of his office which was affixed on the can. However, he has specifically stated that he did not forward the specimen of that seal to the court. He has also not given any evidence that he produced the specimen of that seal before PW4 Excise Inspector. 18. On the other hand, PW4 Excise Inspector has no consistent case with regard to the production of the specimen of the seal by PW3 before him. He stated on cross-examination that the specimen of the seal was produced before him and he had forwarded it to the court. He has subsequently stated on cross-examination that the specimen of the seal was not produced before him and he forwarded the requisition (forwarding note) to the court without providing the specimen of the seal in it. Again, in re-examination he would state that PW3 had produced the specimen of the seal before him in a paper and he had forwarded it to the court. As noticed earlier, PW3 has not given evidence that he had produced the specimen of the seal, which was affixed by him on the can, before PW4. The prosecution has also not produced and marked the specimen of the seal provided by PW3 in a paper before PW4 and which was allegedly forwarded by PW4 to the court. At any rate, PW4 has categorically deposed that he had not provided the specimen of the seal which was affixed on the can in the **CRL.A.No.621 OF 2007** **7** forwarding note prepared by him and submitted by him before the court. In such circumstances, the statement in Ext.P4 chemical examination report that the seal on the sample bottle was intact and that it found tallied with the sample seal provided does not mean that the chemical examiner had occasion to compare the seal affixed on the sample bottle with the specimen of the seal which was allegedly affixed by PW3 on the can. 19. The forwarding note allegedly prepared by PW4 Excise Inspector for sending the sample for chemical examination is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample of liquid taken from the very same can seized from the possession of the accused had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). Absence of the forwarding note in evidence means absence of evidence connecting the sample tested in the laboratory and the sample allegedly drawn from the liquid seized from the possession of **CRL.A.No.621 OF 2007** **8** the accused. 20. Mere production of a laboratory report that sample tested was the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569).** 21. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. The trial court has assumed that the sample was drawn by the court concerned and it was forwarded for analysis with the specimen of the seal which was affixed by PW3 on the can containing the liquid which was allegedly seized from the possession of the accused. In such circumstances, the conviction entered against the appellant/accused cannot be sustained. 22. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court for the offence punishable under Section 58 of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. ## Sd/- **R.NARAYANA PISHARADI, JUDGE** jsr