Ramadas v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938 CRL.A.No. 2030 of 2008 --------------------------- AGAINST THE JUDGMENT IN SC 639/2007 of ADDITIONAL SESSIONS COURT (ADHOC)I, THRISSUR APPELLANT/ACCUSED: -------------------- RAMADAS, S/O. RAJAN, POTTAYATH HOUSE, MELOOR VILLAGE, PULANI DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. BY ADV. SRI.A.C.DEVY RESPONDENT/STATE: -------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31. BY PUBLIC PROSECUTOR SMT. M.G. LISHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-032016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 2030 of 2008 = = = = = = = = = = = = = = = = = = = Dated this the 22[nd] day of March, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thrissur, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- (Rupees one lakh only) and, in default of payment of fine, to undergo simple imprisonment for two 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. CRA 2030/2008 2 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector attached to the Excise Circle Office, Irinjalakuda, and his party were on patrol at about 8 p.m. on 21.8.2004. While so, the appellant was seen at Poolani in Meloor Village carrying a 10 litre black jerrycan in his right hand. On examining that jerrycan, about 8 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 an Arrest Memo. An arrest intimation was also issued to his relative. PW1 had drawn 300 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the jerrycan. The sample bottle was sealed by affixing the personal seal of PW1. The jerrycan containing bulk of arrack was also sealed. Both the sample and the jerrycan containing arrack were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party returned with the appellant, CRA 2030/2008 3 contraband and the records and handed over them to PW5, the Excise Inspector, Excise Range Office, Chalakudy. PW5 registered Crime No. 43 of 2004 of that Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus prepared by PW5. He had produced the appellant, properties and the records before the Judicial First Class Magistrate's Court, Chalakudy. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Chalakudy. He had gone to the place of occurrence and prepared Ext.P3 Scene Mahazar. He had also prepared Ext.P4 Location Sketch in respect of the place of occurrence. 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 CRA 2030/2008 4 of Session, Thrissur, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Thrissur. The court below framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs. 1 to 6 and marked Exts.P1 to P6 and MO.I on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had examined DW1 and marked Ext.D1 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 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 by the court below against him. It is the case of the prosecution that the CRA 2030/2008 5 appellant was found in possession of 8 litres of arrack in a jerrycan at about 8 p.m. on 21.8.2004 and PW1 arrested him then and there and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. PW5 had produced the appellant, contraband including sample and the records before the court. The List of Property was not marked in this case. There is no evidence as to whether PW5 had prepared a List of Property for producing the properties before the court. A List of Property is not available among the records. PW5 admitted before the court that he had produced the property before the court only on 24.8.2004. He had not offered any valid explanation for occurring such a delay in producing the property including the sample before the court. He simply stated that the properties were kept under his custody till they were produced before the court on 24.8.2004. That is not a valid explanation. Producing the contraband items CRA 2030/2008 6 along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. PW5 himself had produced Ext.P1 Seizure Mahazar and Ext.P6 Crime and Occurrence Report before the court on 22.8.2004. Then, what was the special reason that prevented PW5 from producing the properties before the court on that day. No reason was stated by PW5 or any other official witness. A Division Bench of this Court in **Ravi v. State of Kerala(2011 (3) KLT 353)** has laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector(2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is fatal to the prosecution case. In the case on hand, there is absolutely no reason for the delay that occurred in producing the properties before the court. Therefore, this unexplained inordinate delay that CRA 2030/2008 7 occurred in producing the properties before the court is fatal to the prosecution and on that ground alone the appellant is entitled to an order of acquittal. 6. Ext.P5 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. It is also certified in Ext.P5 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? None of the official witnesses deposed before the court that a Forwarding Note had been produced before the court describing the sample for subjecting the same to chemical analysis. A copy of the Forwarding Note is not marked in this case. A copy of the Forwarding Note is not available among the records as well. A copy of the Forwarding Note is tendered in evidence for securing certain purposes. The copy will show the contents of the Forwarding Note sent CRA 2030/2008 8 along with the sample to the chemical examiner. Unless the chemical examiner compares the seal on the sample bottle with the sample impression of that seal given in the Forwarding Note, there is no assurance that the chemical examiner really examined the sample taken from the bulk of the contraband allegedly seized from the appellant. If a copy of the Forwarding Note affixed with a sample seal is tendered in evidence, it would be an assurance that a Forwarding Note affixed with a sample seal, in fact, reached the chemical examiner for comparison. Such a link evidence is missing in this case. Moreover, the clerk who was dealing with the properties in the court was not examined in this case. Had he been examined, some light would have been available as to whether the sample sent to the chemical examiner for subjecting to chemical analysis was with the Forwarding Note affixed with a sample seal for comparison. But he was not examined in this case. CRA 2030/2008 9 Therefore, there is no assurance that the Chemical Examiner really examined the sample taken from the bulk allegedly seized from the appellant in this case. 7. 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 CRA 2030/2008 10 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 possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” The Division Bench of this Court in **Ravi v. State of Kerala (supra)** 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.P5 Certificate of Chemical Analysis is rendered a CRA 2030/2008 11 doubtful one entitling the appellant to the benefit of doubt. 8. PW4, the Excise Inspector, Excise Range Office, Chalakudy, had conducted the investigation of the case. It can be seen from the records that he had questioned the witnesses only on 11.11.2006, 12.11.2006, 13.11.2006 and 20.11.2006. The alleged occurrence was on 21.8.2004. So, there was inordinate delay in commencing and conducting the investigation of the case. 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 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 CRA 2030/2008 12 in accordance with sub-section (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 the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (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. Ext.P5 Certificate of Chemical Analysis had been received by the court on 2.5.2006. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P5. But, the Final Report was filed before the court only on 25.11.2006. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances of the case, is CRA 2030/2008 13 fatal to the prosecution. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 9. For the foregoing reasons, the conviction and sentence passed against the appellant by the court below are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 58 of the Abkari Act. 10. 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 58 of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## **ks** Sd/- **BABU MATHEW P. JOSEPH JUDGE** True copy P.S. (Hr.Gr.)To Judge CRA 2030/2008 14