Raju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937** **CRL.A.No. 1971 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 258/2003 of ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA DATED 23-11-2004** **APPELLANT(S)/ACCUSED NO.2:** **------------------------RAJU, S/O. GEORGE, PATTATHIL VADAKKETHIL VEEDU, VALLIKODU VILLAGE, KOZHENCHERRY.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT(S)/COMPLAINANT:** **--------------------------** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1971 of 2004 ---------------------------------------------Dated this the 17[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the judgment of conviction and sentence in S.C.No.258/2003 of Additional District & Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta u/s.55(a) of the Abkari Act. The charge against the accused is that on 12.8.2000 at 12.20 noon, while the Preventive Officer Konni Excise Range was conducting patrol duty, he got information that the 2nd accused was conducting sale of arrack. He prepared a search memorandum and immediately proceeded to the house of the accused at Kudamukku, Vth ward of Vallikodu Village, at that time, he found the 2nd accused carrying a kannas and proceeding through the road, on seeing the Excise Party, he ran away and entered into the house of one Crl.Appeal No.1971/2004 2 Janaki and escaped through the back door of that house. The Preventive Officer searched the house and after preparing a mahazar, seized MO1 kannas, in which he detected 4 litres of spirit, reaching at the Excise Office, he registered a crime and after completing investigation, the Excise Inspector, Konni laid charge before Judicial First Class Magistrate Court-II, Pathanamthitta against two persons. From there the case was committed to Sessions Court, Pathanamthitta subsequently, it was made over to the Additional Sessions Court. 2. During trial, prosecution examined five witnesses and marked Exts.P1 to P10 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning them. They did not adduce any defence evidence. The learned Additional Sessions Judge convicted the 2nd accused u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of 1 lakh, in default,₹ Crl.Appeal No.1971/2004 3 simple imprisonment for two years. The 1st accused was acquitted. Being aggrieved by that, he preferred this appeal. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. In this context, I have considered whether the detecting officer or the investigating officer has complied with the procedural formalities at the time of seizing the contraband articles. I have also examined the nature of sampling and the relevant seal affixed in the sample. For ascertaining that aspect, I have examined the oral evidence of PW1. The evidence of PW1 shows that while he was conducting patrol duty and reaching at the Kudamukku in Vallikodu Village, he got information that the appellant was conducting sale of arrack in his house. Immediately, he proceeded to the house of the accused, at that time, the appellant was found carrying MO1, on seeing the Excise Party, he abandoned MO1 in the house of one Janaki and escaped from the place of occurrence. Crl.Appeal No.1971/2004 4 The Excise Officials arrested the owner of that house and the reason for the arrest of A1 was not stated by PW1. He took sample from MO1 kannas and affixed label on it. The signature of A1 was obtained in the label. For that, he prepared Ext.P1 mahazar. Ext.P2 is the arrest memo. Reaching at the Excise Office, he entrusted MO1 and the documents to the Excise Range Inspector. On 20.8.2000, A2 was arrested. Ext.P3 is the arrest memo of A2. The accused was produced before Court as per Ext.P4 remand application. Analysing the evidence of PW1 it is clear that at the time of taking sample, he has not affixed his seal in the seizure mahazar or in the label. PW2 is another Excise Guard, who supported the evidence of PW1. He also identified A1 and A2 and MO1. 5. PW3 stated that A1 and A2 are his neighbours. He did not see the seizure of MO1, but he admitted signature in Ext.P1 and P2. PW4 is also an independent witness, who denied Crl.Appeal No.1971/2004 5 signature in Exts.P1, P2 and MO1. PW5, the Excise Inspector deposed that he conducted investigation in this case. PW5 identified MO1. He registered a crime and Ext.P7 is the crime and occurrence report. Ext.P8 is the property list. He prepared Ext.P9 remand application of A1. He also issued requisition for taking sample from MO1. The sample was taken from the Court. Ext.P10 is the chemical examination report, in which it is stated that 94.83% volume of ethyl alcohol was detected in the sample. Even though these witnesses deposed so, no evidence has been adduced by the prosecution to show that proper procedure was complied with in this case. Even though PW5 stated that sample was drawn from the contraband article by the Court, who had drawn sample from MO1 was not disclosed by PW1. The order of the Magistrate was not marked by the prosecution. Therefore, it is the duty of the prosecution to show that sample properly drawn from MO1 had reached in the chemical examiner's lab in a fool Crl.Appeal No.1971/2004 6 proof condition. Therefore, in the absence of such connecting link, the facts and circumstances show that the prosecution failed to discharge the above responsibility. Even though Ext.P10 chemical examination report has been marked in the trial Court, that itself is not sufficient for convicting the accused in this case. 6. **Ravi** v. This position was explained by this Court in **State of Kerala** [2011 (3) KLT 353], in which it is held as ## follows: 13. It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Crl.Appeal No.1971/2004 7 Chemical Examiner by change of hands in a tamperproof condition. (Vide - State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one 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 (See - Sathi v. State of Kerala (2007 (2) KLT SN 57 (C.No.82) and Sasidharan v.State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant. 14. The conviction recorded and the sentence passed by the court below, overlooking the above vital aspects of the matter, cannot be sustained. The appellant is accordingly found not guilty of the offence punishable under Section 55(a) of the Abkari Act and is acquitted thereunder. THE appellant is set at liberty forthwith. THE above Crl. Appeal is allowed as above.” In the absence of any connecting link, Ext.P10 chemical analysis report is not sufficient for a conviction. It is the primary responsibility of the prosecution to prove the case beyond Crl.Appeal No.1971/2004 8 reasonable doubt. In the result, the conviction and sentence passed by the Additional District and Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta u/s.55(a) of the Abkari Act against the appellant are set aside and the appellant is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd