Raju s/o Pappy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 7TH DAY OF AUGUST 2014/16TH SRAVANA, 1936 CRL.A.No. 634 of 2005 (F) -----------------------------S.C. 163/2003 OF ADDL. DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT-III, PATHANAMTHITTA --------- APPELLANT/ACCUSED: ------------------------- RAJU S/O. PAPPY, KUNNIKUZHIVADAKKETHIL VEEDU, MANGARAM MURI PANDALAM VILLAGE, ADOOR TALUK. BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.634 of 2005 -----------------------------------------------Dated this the 7[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-III, Pathanamthitta, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo simple imprisonment for three years and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for four months. The appellant challenges the conviction and sentence passed against him by the court below, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer, Excise Range Office, Adoor, and his party were on patrol at Mangaramkara in Pandalam Village at about 9.00 a.m. on 29-10-1999. While Crl. Appeal No.634 of 2005 -2- so, PW1 received reliable information that the appellant was selling arrack in his house. Therefore, PW1 prepared a Search Memo and sent it to the court. Thereafter, the excise party went to the house of the appellant. Seeing the excise party, the appellant had run away from the house. Even though PW1 and a guard in the excise party followed him, he could not be apprehended. PW1 returned to that house and commenced the search there. During the search, two jerrycans of 35 litre and 10 litre each were found in the kitchen of that house. On examination, about 30 litres of spirit was found in the 35 litre jerrycan and about 9 litres of arrack was found in the 10 litre jerrycan. PW1 seized those jerrycans under Ext.P2 Seizure Mahazar in the presence of witnesses. Ext.P1 is the Search List prepared by PW1 in the presence of witnesses. PW1 had drawn 180 ml. each of spirit and arrack in two separate bottles from the bulk contained in those jerrycans. The samples as well as the jerrycans were sealed and labelled. 'S' was marked on the sample of Crl. Appeal No.634 of 2005 -3- spirit and 'A' was marked on the sample of arrack. Thereafter, PW1 reached the Excise Range Office, Adoor, with the contraband including samples and the records and produced them before PW4, the Excise Inspector. PW4 registered Crime No.101 of 1999 of that Range Office in respect of the occurrence. Ext.P9 is the Crime and Occurrence Report prepared by PW4. He had produced the properties before the court along with Ext.P10 List of Property prepared by him. He had also produced the Forwarding Note before the court for subjecting the samples to chemical examination. 4. PW5, the Excise Inspector, Excise Range Office, Adoor, had arrested the appellant on 24-12-1999. Ext.P4 is the Arrest Mahazar and Ext.P5 is the Arrest Memo prepared by PW5. Ext.P6 is the Arrest Notice served on the wife of the appellant. PW5 had produced the appellant before the court on 24-12-1999 along with Ext.P11 Remand Report. PW7, the Excise Inspector, Excise Range Office, Adoor, had conducted Crl. Appeal No.634 of 2005 -4- the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court, Adoor. 5. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Adhoc)-III, Pathanamthitta. The court below framed a charge against the appellant alleging the offences under Sections 8 and 55 (a) of the Abkari Act. The appellant had pleaded not guilty of the charge. The prosecution examined PWs.1 to 7 and marked Exts.P1 to P12 and MOs.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offences under Sections 8 and 55(a) of the Crl. Appeal No.634 of 2005 -5- Abkari Act. But, he was convicted by the court below only for the offence under Section 55(a) of the Abkari Act. He was heard on the question of sentence and imposed the sentence on him. 6. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW1 and his party conducted search in the house of the appellant on 29-10-1999 and detected the offence. The contraband items contained in MOs.1 and 2 jerrycans were seized by PW1 in the presence of witnesses. He had also drawn samples of the spirit and the arrack then and there and the samples as well as the bulk contained in the jerrycans were sealed. The properties including the samples were described as sealed in Ext.P10 List of Property. PW1 deposed also before the court that the samples were sealed. PW2, Excise Guard, who accompanied PW1 at the time of detection of the offence, also deposed that the samples were so sealed. The evidence of PW1 Crl. Appeal No.634 of 2005 -6- shows that the seal affixed on both the jerrycans and on both the samples was his personal metal seal with the impression 'V.N.S.' . The sample seal is not affixed on Ext.P2 Seizure Mahazar. PW1 admitted that the description of the seal was not given either in Ext.P2 or in the statement he had given. 7. Ext.P7 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples. It is also noted in Ext.P7 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the personal seal claimed to have been affixed by PW1 on the samples or the seal affixed from the court? PW4 deposed that he had submitted the Forwarding Note along with the properties for sending the samples for Chemical Analysis. He further stated that the Forwarding Note so submitted was not available in the court as it was sent after counter signing Crl. Appeal No.634 of 2005 -7- from the court to the Chemical Examiner. He had also stated that a carbon copy of that Forwarding Note was available in the case diary. Even though PW4 so stated before the court, he had not cared to tender that carbon copy of the Forwarding Note in evidence. If a true copy of the Forwarding Note was marked, it would have been really helpful for ascertaining what all details were available in the original Forwarding Note. A Forwarding Note has a specific column for affixing the sample seal. Therefore, if a copy of the Forwarding Note was marked, the fact as to whether a sample seal was affixed on the Forwarding Note could have been ascertained and proved. But, in the absence of a copy of the Forwarding Note, there is no proof for the fact whether a sample of the seal was provided in the Forwarding Note. None of the excise officials examined in this case had a case that sample seal had been affixed on the Forwarding Note. Another material fact also has to be considered here. The evidence of PW1 clearly shows that the seal which was Crl. Appeal No.634 of 2005 -8- seen on MO1 and MO2 was only the seal of the court. Therefore, the personal seal claimed to have been affixed by PW1 was not appearing on MOs.1 and 2 while he was examined before the court. Therefore, no sanctity could be attached to the statement made by the Chemical Examiner in Ext.P7 Certificate of Chemical Analysis that the seal on the sample bottles found tallied with the sample seal provided. In the circumstances, the sample seal so noted by the Chemical Examiner may be the seal of the court. The position of the prosecution further weakens by the fact that the prosecution had not chosen to examine the Property Clerk who was dealing with the material objects in the court. He would have been a material witness as to the fact whether sample seal was provided in the Forwarding Note sent along with the samples to the Chemical Examiner's Laboratory. Merely comparing the seal of the court affixed on the samples with the specimen seal of the court will not give any assurance that the samples of the contraband Crl. Appeal No.634 of 2005 -9- allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the samples was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant. ## 8. This Court in **Rajamma v. State of Kerala (2014** ## **(1) KLT 506)** has held as follows: “.......... The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In Crl. Appeal No.634 of 2005 -10- the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** has held that the prosecution 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 in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution 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. Therefore, for these reasons, Ext.P7 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. The prosecution case is that the occurrence in this case had taken place on 29-10-1999. The offence was Crl. Appeal No.634 of 2005 -11- detected by PW1. Being an Excise Preventive Officer, he was incompetent to conduct investigation of the case. But, according to the prosecution, the contraband and the records were entrusted to PW4 on that day itself. PW4 was a competent officer to conduct investigation. But, he had not conducted the investigation. He had not given any reason also for not conducting investigation of the case. PW5 had arrested the appellant on 24-12-1999 and produced him before the court along with Ext.P11 Remand Report. But, he had not conducted any further investigation of the case. Thereafter, the investigation of the case had been conducted by PW7. He had questioned the witnesses on 12-07-2002 and on 20-07-2002. He had not given any explanation for the delay occurred in conducting the investigation. No other excise officials examined also had given any explanation for the delay. Section 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As Crl. Appeal No.634 of 2005 -12- soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C to the concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. What was the reason? No explanation is forthcoming. Ext.P7 Certificate of Chemical Analysis reached the court on 18-04-2000. Therefore, the Investigating Agency ought to have submitted the Final Report before the Court soon after the receipt of Ext.P7 by the court. But, in this case, PW7 questioned the witnesses on 12-07-2002 and on 20-07-2002. After investigation, the Final Report was submitted before the court only on 25-09-2002. Therefore, the inordinate delay that occurred in conducting investigation and submitting Final Report before the court, in the facts and circumstances of the case, is fatal to the prosecution. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . Crl. Appeal No.634 of 2005 -13- 10. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offences under Sections 8 and 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.634 of 2005 -14-