Ramachandran v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 14TH DAY OF MARCH 2016/24TH PHALGUNA, 1937 CRL.A.No. 1419 of 2006 (F) ------------------------------AGAINST THE JUDGMENT IN SC 200/2005 of ADDL. SESSIONS COURT (ADHOC) III, PATHANAMTHITTA DATED 11-07-2006 CP 57/2004 of J.M.F.C., ADOOR ----- APPELLANT/ACCUSED: ------------------------- RAMACHANDRAN, AGED 57 YEARS, S/O.KANDAN, KATOOR VEEDU, KADAMPANADU VADAKKU MURI KADAMPANADU VILLAGE, ADOOR TALUK. BY ADV. SRI.C.C.THOMAS (SR.) RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, ADOOR PATHANAMTHITTA DIST., REP. BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.1419 of 2006 -----------------------------------------------Dated this the 14[th] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to₹ undergo simple imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred 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 Circle Inspector of Excise, Excise Circle Office, Adoor, and his party were on patrol at Kadampanadu in Kadampanadu Village at about 11.00 a.m. on 02-02-2001. Crl. Appeal No.1419 of 2006 -2- While so, the appellant was seen coming from the opposite side carrying a 10 litre black jerrycan in his right hand. Seeing the excise party, the appellant attempted to flee away leaving the jerrycan there. But, the excise party stopped him there. On examining the jerrycan, 4 litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P1 Arrest Memo. Ext.P3 is the Notice of Arrest. The arrack contained in the jerrycan was seized by PW1 under Ext.P2 Seizure Mahazar in the presence of witnesses. PW1 had drawn two samples of arrack of 300 ml. each in two 375 ml. bottles from the bulk contained in the jerrycan. The samples and the jerrycan containing arrack were sealed and labelled. Thereafter, PW1 and his party reached the Excise Circle Office, Adoor, with the appellant, contraband including samples and the records. The appellant, contraband including samples and the records were handed over to CW5, the Assistant Excise Inspector in charge of Excise Inspector, Excise Range Office, Adoor. CW5 Crl. Appeal No.1419 of 2006 -3- registered Crime No.16 of 2001 of that Range Office in respect of the occurrence. Ext.P4 is the Crime and Occurrence Report thus prepared by CW5. CW5 had produced the appellant, contraband including samples and the records before the Judicial First Class Magistrate's Court, Adoor. Ext.P5 is the Remand Report. Ext.P6 is the List of Property. Ext.P7 is a copy of the Forwarding Note. Ext.P8 is a portion of the statement given by PW2. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW3, the Excise Inspector, Excise Range Office, Adoor. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court. 4. 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 (Ad hoc)-III, Crl. Appeal No.1419 of 2006 -4- Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 3 and marked Exts.P1 to P9 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the prosecution case that the appellant was found in possession of 4 litres of arrack at about 11.00 a.m. on 02-02-2001 and he was arrested then and there by PW1 and the contraband was seized under Ext.P2 Seizure Mahazar. It is also their case that PW1 had drawn two samples of 300 Crl. Appeal No.1419 of 2006 -5- ml. each of arrack in two 375 ml. bottles from the bulk contained in M.O.1 jerrycan and the samples and M.O.1 were sealed. It is stated in Ext.P2 Seizure Mahazar that they were so sealed. The contraband along with the samples was produced before the court describing them in Ext.P6 List of Property. It is stated in Ext.P6 also that the samples as well as M.O.1 were sealed. PW1 deposed also before the court that they were so sealed. It can be seen from the deposition of PW1 that the seal so affixed was his personal seal. 6. Ext.P9 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 the sample and the sample of liquid contained 29.94% by volume of ethyl alcohol. It is also stated in Ext.P9 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW1? Ext.P7 is a copy of the Forwarding Note submitted before the court for sending the sample for Crl. Appeal No.1419 of 2006 -6- subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P7. Whether the sample seal was affixed on the original of Ext.P7 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P7, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Crl. Appeal No.1419 of 2006 -7- Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. The matter does not end there. 7. It is the case of the prosecution that the contraband with the samples was produced before the court along with Ext.P6 List of Property and Forwarding Note by CW5. CW5 could not be examined before the court as he was unable to travel to the court. The evidence given by PW1 shows that the seal affixed on the samples as well as on M.O.1 containing arrack was his personal seal. PW1 does not have a case that he had handed over that personal seal to CW5 for affixing on the Forwarding Note. The Forwarding Note was not prepared by PW1. It is seen prepared by CW5. Going by the evidence on record, it is not possible to find that CW5 was in a position to affix the sample of the seal affixed by PW1 on the sample bottles and on M.O.1 containing arrack in the Forwarding Note. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Crl. Appeal No.1419 of 2006 -8- Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is 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 sample taken from the bulk allegedly seized from the appellant in this case. 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 the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the Crl. Appeal No.1419 of 2006 -9- 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, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: ## “ **50. Report of Abkari Officer gives** Crl. Appeal No.1419 of 2006 -10- **jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As 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 Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. The alleged occurrence in this case was on 02-02-2001. PW1, the Circle Inspector of Excise, Excise Circle Office, Adoor, was a competent Abkari Officer for conducting the investigation. Crl. Appeal No.1419 of 2006 -11- But, he had not conducted the investigation. Later, the investigation was conducted by PW3, the Excise Inspector, Excise Range Office, Adoor. It can be seen from the records produced along with the Final Report filed by the investigating agency before the court that the witnesses in this case were questioned by PW3 on 12-12-2003, 01-01-2004 and on 02-01-2004. Therefore, there was inordinate delay in commencing and conducting investigation of the case. The Final Report, after investigation, was filed before the court on 20-04-2004. Ext.P9 Certificate of Chemical Analysis dated 09-05-2002 had been received by the court on 14-06-2002. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P9. But, the investigating agency had taken nearly two years for submitting the Final Report before the court after the receipt of Ext.P9 by the court. This inordinate delay in commencing and conducting investigation and submitting Final Report before the court, in the facts and circumstances, is fatal to Crl. Appeal No.1419 of 2006 -12- the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 10. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077** ). In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. The investigating agency has not prepared a Scene Mahazar showing the place of occurrence in this case. PW1 or PW3 has not offered any reason for not preparing a Scene Mahazar in this case. PW1 alone has deposed in support of the case of the prosecution. PW2 was cited and examined as an independent witness. He has not supported the prosecution version of occurrence. He was declared hostile to the prosecution. On considering the Crl. Appeal No.1419 of 2006 -13- different aspects dealt with in this judgment, this Court is of the view that it is unsafe to convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act purely based on the evidence of PW1, the Detecting Officer. The appellant, at least, is entitled to the benefit of doubt. 11. For the foregoing reasons, the 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. 12. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 8(1) and (2) 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.1419 of 2006 -14-