## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH**
**MONDAY, THE 4TH DAY OF DECEMBER 2017/13TH AGRAHAYANA, 1939**
**CRL.A.No. 2067 of 2007 ( ) ---------------------------**
**AGAINST THE JUDGMENT IN SC 140/2006 OF THE COURT OF ADDITIONAL SESSIONS JUDGE ( ADHOC) I, MANJERI DIVISION**
**CP 5/2006 of J.M.F.C.,TIRUR**
**APPELLANT/ACCUSED:**
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**RAMAN, S/O.KANDAN, GHOZHIYAR KUNNATH**
**HOUSE, PARAVOOR VILLAGE, OTTAPPALAM, TALUK, PALAKKAD.**
**BY ADVS.SRI.N.NAGARESH SRI.SHAJI THOMAS PORKKATTIL**
## **RESPONDENT/COMPLAINANT:**
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**STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
## **BY PUBLIC PROSECUTOR SRI.D.CHANDRASENAN**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
## **K.P.JYOTHINDRANATH, J.**
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## **Crl.Appeal No.2067 OF 2007**
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Dated this the 4[th] day of December, 2017
## **JUDGMENT**
This appeal is filed against the judgment of conviction in S.C.No.140/2006 on the files of the Additional Sessions Judge ( Adhoc I), Manjeri Division. The conviction is under Section 8(2) of the Abkari Act and sentence is to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- with default rigorous imprisonment for six months.
2. The allegation against the appellant is that he was found in possession of 5 litres of illicit arrack and was arrested, sample was lifted, a mahazar was prepared, produced before the office and a crime was registered. He was produced before the Magistrate as well as the contraband was produced. A final report was filed before the concerned court after investigation. The
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prosecution altogether examined five witnesses and Exts.P1 to P9 marked and MO1 was identified. After appreciating the evidence, the court below convicted the accused and sentenced as stated above.
3. When the appeal came up for hearing, learned counsel appearing for the appellant vehemently argued before this court that this is a case where Ext.P9 will reveal that there is no specific averment in the said report to the effect that he had compared the seal affixed by the detecting officer while sampling was done with the specimen seal available in the forwarding note. When such a comparison is not apparent and evident from the documents and evidence, there is a possibility of tampering the material and he is entitled for benefit of doubt. It is the specific argument of the learned counsel that the dictum laid down by this court in **Jose v. State of Kerala ( 2016 (3) KHC 789)** is relevant. It is submitted that while rendering the said decision, this court also followed the
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decision in **Ravi v. State of Kerala ( 2011 (3) KHC 121** ). It is the submission that only when there is comparison by the chemical analyst regarding the specimen impression seal and the seal seen on the sample, then only there can be assurance regarding nontampering. When this aspect is missing, the court cannot come to a definite conclusion that there is no tampering and the corollary is that the appellant is entitled for acquittal for the reason of benefit of doubt. It is also pointed out that the appellant is a tribal and even the arrest appears to be doubtful especially when there is a later correction made in the case of identify of the accused.
4. I heard the learned Public Prosecutor. The learned Public Prosecutor submitted before this court that all the required evidence to prove the case is available in this case. The detecting officer as well as a staff from the court was examined on the side of the prosecution to establish that the accused committed the offence.
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5. After hearing the counsel, I perused the evidence in this case. PW1 is the Junior Superintendent attached to J.F.C.M. Court, Tirur. He deposed before the court that on 14.07.2004, the thondi articles in Crime No.11/2004 of Kuttippuram Excise Range office was produced before the court and on the very same day, it was received by the court and it is evident from the property list which was marked before the court as Ext.P1. He further deposed that it can be further seen that on 10.07.2004, the articles was actually produced before the Magistrate. Thereafter, it was produced before the court on the subsequent date. He further deposed that on 5.8.2004 the sample was sent for chemical analysis with a forwarding note and the forwarding note is marked as Ext.P2. He also deposed that, in Ext.P1, it was categorically written that sample was sealed and labelled. PW2 is the then Preventive Officer who detected the crime. He deposed that while they were conducting patrol duty, they got a secret information regarding the
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sale of the arrack at Chullichola area and the accused was found with a white can and he identified the accused as the person who was arrested on that day. He deposed that the can which was in the possession of the accused was containing 5 litres of arrack. Arrest memo was produced and marked as Ext.P3. He further deposed that, sample was taken and he put a personal seal after sealing. He further deposed that an intimation was given regarding the arrest of the appellant to his wife which was marked as Ext.P4. He also identified the can in which arrack was contained as MO1. PW3 is another preventive officer who was also present in the detecting party. He also supported the prosecution case. PW4 is a witness to the incident who was declared as hostile. PW5 is the inspector before whom PW2 was produced. He registered the crime. He sent the occurrence report to the court. As per the evidence of the official witnesses, it can be seen that the detection of the crime need not be doubted. The evidence of PWs 2, 3 and 5
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shows that the appellant was seen in possession of 5 litres of arrack and was arrested.
6. As already highlighted, the main argument advanced before this court is regarding the identity of the sample analysed by the analyst and the sample prepared by the detecting officer. The question raised by the appellant is regarding whether actually Ext.P9 pertains to the sample which was allegedly taken by the detecting officer at the time of detection.
7. The argument is that when the comparison is lacking in Ext.P9, in respect of the specimen seal allegedly put by the detecting officer and seen in the forwarding note, it cannot be positively said that nexus was proved by the prosecution. Surely, in this regard learned counsel drawn my attention to Jose's case ( supra). But in this case, it appears that there is some difference. PW1 is none other than the court staff who deposed before the court that the alleged contraband was produced before the court
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immediately after the detection. At first it was seen produced before the Magistrate and thereafter it was produced before the court on a subsequent date and from the court, the sample was sent. He had deposed that Ext.P1 states that “ sample sealed and labelled” and that was sent from the court for analysis. Further on a perusal of Ext.P9, it can be seen that analyst received the contraband in Crime No.11/2004. Thus, the property received in the court and the analyst report is linked by the evidence of court staff in this case. More over, the article was forwarded by the Magistrate for analysis. There is no requirement regarding sample seal of excise inspector because the request is by the Magistrate and whether that fact is proved by the staff from the court is a question to be considered in this case. In this case that aspect is seen proved. When a staff of the court was examined, the analysis report obtained to the court need not be further doubted. Then there is nothing to interfere with the conviction entered into by the
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court below.
8. The only question is that of sentence. Here is a case where it is stated that a tribal person was arrested. At that relevant point of time there was no total prohibition in the State. There was only ban of arrack. Considering the totality of the case, the sentence is modified and reduced as simple imprisonment for two months and to pay a fine of Rs.1,00,000/- with default simple imprisonment for 15 days.
With the above modification on the side of the sentence and fine, this appeal is partly allowed.
**K.P.JYOTHINDRANATH JUDGE**
sv.
