Rajesh s/o Sukumaran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.UBAID MONDAY, THE 23RD DAY OF JANUARY 2017/3RD MAGHA, 1938 CRL.A.No. 352 of 2012 () ------------------------- AGAINST THE JUDGMENT IN SC 23/2009 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM AGAINST THE ORDER IN CP 98/2007 of J.M.F.C. - I, KARUNAGAPPALLY APPELLANT/1ST ACCUSED.: ----------------------------------- RAJESH S/O.SUKUMARAN, REJESH BHAVANAM, MAVELIKKARA MURI, MAVELIKKARA, ALAPPUZHA DISTRICT. BY ADVS.SRI.K.SIJU SMT.BINDU GEORGE SMT.S.SEETHA RESPONDENT(S)/COMPLAINANT.: --------------------------- STATE OF KERALA REPRESENTED BY EXCISE RANGE OFFICER, KARUNAGAPPALLY, EXCISE RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.S. HRITHWIK THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.UBAID, J.** ## **~~~~~~~~~~ Crl.A No.352 of 2012 ~~~~~~~~~~~ Dated this the 18[th ] January, 2017** ## **J U D G M E N T** The appellant herein is the first accused in SC 23/2009 of the Court of Session, Kollam. He challenges the conviction and sentence against him under Section 55 (a) of the Kerala Abkari Act. ('the Act” for short). He and two others faced prosecution before the court below, on the allegation that at about 12.30 a.m on 15.10.2003 at Kochalumoodu Junction, the appellant and two others were found transporting a quantity of 280 litres of spirit contained in eight cans of 35 litres of capacity in the Jeep No.KL-01-L5404. It is alleged that on suspicion, the police party led by the Excise Inspector, Karunagappally chased the said vehicle, and after a few minutes of chasing, the three persons stopped the vehicle, and they ran off. Though the three persons including the driver ran off, one was caught by the Excise team. He is said to be the present appellant. On interrogation by the Excise Inspector, the appellant stated that the quantity of spirit was in fact transported by the driver of the vehicle for one **Crl.A No.352 of 2012** **2** Radhakrishna Kurup, and that he was in fact taken by the 1[st] accused on the way, for a company. Anyway, the Excise Inspector arrested the present appellant, and he was produced before the court on the same day along with the properties. The other two accused were later arrested by the Investigating Officer. Another Excise Inspector registered the crime and produced the properties before the Range Office, and investigation was taken over by the Circle Inspector of Excise, Karunagappally. After investigation, the Excise Inspector submitted final report in court. 2. The appellant and the two others appeared before the learned Additional Sessions Judge (Adhoc) II, Kollam, and pleaded not guilty to the charge framed against them under Section 55 (a) of the Act. The prosecution examined eight witnesses and proved Exts.P1 to P14 documents. The accused examined one witness in defence to prove the case that he was in fact in his house on 15.10.2003. 3. On an appreciation of the evidence, the trial court found the first accused guilty under Section 55 (a) of the **Crl.A No.352 of 2012** **3** Act, and found the other two accused not guilty. Accordingly, they were acquitted, but the 1[st] accused was convicted under Section 55 (a) of the Act. On conviction, he was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 1,00,000/- (Rupees One lakh₹ only) by judgment dated 27.2.2012. Aggrieved by the said judgment of conviction, the 1[st] accused has come up in appeal. 4. When this appeal came up for hearing, the learned counsel for the appellant submitted that there is absolutely no proper and satisfactory evidence to prove the identity of the persons who ran off and escaped, or who was arrested by the Excise Inspector, and that there was no satisfactory evidence to prove that the sample examined at the laboratory was in fact taken from the quantity of spirit allegedly seized from the possession of the accused. 5. On a perusal of the entire materials, I find that there is some substance in the submissions made by the learned counsel. The appellant herein was admittedly not the driver of the vehicle wherein some quantity of spirit was **Crl.A No.352 of 2012** **4** seen by the Excise Inspector. Even according to the prosecution, the vehicle was driven by one Biju, but the Excise Officials could not locate him or arrest him during investigation. So conveniently he was omitted and the final report was filed against three others. The appellant herein is said to be one of the persons who ran off and escaped. It is not seen specifically and satisfactorily explained as to how the persons who ran off and escaped from the seen could be identified by the Excise Inspector in the night. Though the Detecting Officer did not say anything about that aspect in his examination-in-chief, the learned defence counsel brought it out in cross-examination that he saw the accused in the headlight of the vehicle. But when examined further in cross-examination, he stated that he could see everything in the street light. Thus, the witness is not consistent, and his evidence is not satisfactory, as to how exactly the persons who ran off and escaped, or the person arrested were identified properly. 6. The detecting officer and also the Investigating Officer are consistent that the vehicle in question was in **Crl.A No.352 of 2012** **5** fact driven by one Biju. The appellant herein is admittedly one of the passengers in the vehicle. It appears that this petitioner was arrested or that he was prosecuted just for the reason that he was also one of the passengers, and that he also, along with others, ran off, on seeing the Excise party. It is really doubtful whether the quantity of spirit was transported in the jeep by the driver, or whether this appellant had any role or complicity in the said act of the driver. It appears that just because the Excise Inspector could not locate or arrest the driver, he brought a prosecution against the person who ran off on seeing the excise party. 7. There is yet another very important aspect as regards the samples produced. The detection mahazar shows that seals were affixed on all the samples collected by the detecting officer from the cans. The chemical examination report shows that on examination in the laboratory, the seals on the bottles were found tallying with the samples provided. It is not known what is the sample provided. Ext.P8 is the copy of the forwarding note **Crl.A No.352 of 2012** **6** submitted by the Excise Inspector. This does not contain any specimen seal. The defence relies on **Krishnan v. State of Kerala** [2015 (2) KLT SN 8 Case No.11), wherein this Court held that in a case where the specimen sample is not seen in the copy of the forwarding note, it will have to be presumed that seals were not provided properly in the original also. In such a circumstance where the specimen seal is not before the court for perusal, it cannot be found that the chemical examination report relates to the sample collected from the quantity of liquid seized from the possession of the accused. This is a very serious infirmity in the prosecution case. The specimen seal should be produced in court, and it must be specifically and satisfactorily proved that the seal found on the samples bottles was nothing, but the seal furnished in court. In the absence of such specimen seal in court, the report of analysis cannot be accepted to find that it relates to the sample collected from the liquid seized from the possession of the accused. Thus, I find that the accused is entitled for acquittal on the basis of the infirmity regarding the **Crl.A No.352 of 2012** **7** specimen seal. 8. Even otherwise, I find that the prosecution case as against this appellant is suspicious. The only material against him is that on seeing the excise party, he also ran off along with other accused. Just because he ran off or made an attempt to escape, he cannot be prosecuted under the provisions of the Act. To prosecute him and punish him, there must be evidence to show that the spirit in question was in fact possessed or carried or transported by him. Here, the quantity of spirit was found in a jeep. The Excise Inspector could detect who the driver was. Just because he could not locate him, he was just omitted from the array of accused and a final report was filed against the person who made an attempt to escape. This is not the right way of prosecution. The appellant herein can be found guilty only if there is evidence to show that the spirit in question was possessed or transported by him in the jeep driven by the other accused, who could not be located by the investigating officer. There is reason to believe that when the Excise Inspector found it difficult to locate him, he brought a **Crl.A No.352 of 2012** **8** prosecution against the person who made an attempt to escape from the spot. I find that the prosecution case as against the appellant stands not properly proved beyond reasonable doubt. The benefit of this doubt must necessarily go to him. In the result, this appeal is allowed. The appellant is found not guilty of the offence under Section 55 (a) of the Act and he is acquitted of the said offence in appeal under Section 386 (b)(i) Cr.P.C. The conviction and sentence against him in S.C 23/2009 of the Court of Session Kollam will stand set aside. The appellant is released from prosecution and the bail bond, if any, executed by him will stand discharged. SD/- **P.UBAID JUDGE** ma /True copy/ P.S to Judge