Ramesh Babu @ Kunjumon Kaithackal Veedu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **THURSDAY, THE 09TH DAY OF FEBRUARY 2017 / 20TH MAGHA 1938** ## **CRL.A.No. 1009 of 2009** **AGAINST THE JUDGMENT IN SC 2346/2007 of ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA DATED 15-05-2009** ## **APPELLANT:** **RAMESH BABU @ KUNJUMON KAITHACKAL VEEDU, KOODAL P.O., PATHANAMTHITTA.** **BY ADV. SRI.C.S.MANILAL** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09.02.2017, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 1009 of 2009** **2** ## **MARY JOSEPH, J.** **========================= Crl. Appeal No.1009 of 2009 ========================= Dated this the 09[th ] day of February, 2017** ## **J U D G M E N T** ## **-------------------** This Criminal Appeal is directed against the judgment dated 15.05.2009 of the Additional District and Sessions Judge, (Ad-Hoc) Fast Track Court-III, Pathanamthitta (for short 'the court below), in SC No.2346/2007. The appellant is the sole accused involved in the case. He was chargesheeted by the Police for the offence punishable under Sections 8(1) & (2) of the Abkari Act (for short 'the Act'). The court below found the accused guilty of the offence under Sections 8(1) of the Act and convicted and sentenced him under Section 8(2) of the Act to undergo rigorous imprisonment for a period of one and a half years and to pay a fine of `1,00,000/- (Rupees One lakh only) and in default of payment of fine to undergo simple imprisonment for 6 months. Aggrieved by the said judgment of conviction and sentence, the accused has approached this Court in the captioned appeal. The parties to this appeal are referred to hereinafter as the complainant (the prosecution) and the accused with reference to their status before **CRL.A.No. 1009 of 2009** **3** the court below. 2. As per the allegation of the prosecution, the accused was found in the pathway proceeding to Nedumonkavu Eezhanethu bhagom in Koodal village on 27.04.2006 at about 6 p.m. carrying two plastic bottles. On being convinced based on examination that the contents in the plastic bottles are arrack, he was chargesheeted for the offence punishable under Section 8(1) and (2) of the Act. 3. The offence alleged was detected by the S.I. of Police of Koodal Police Station while on patrol duty with a Police Constable. Sample has been drawn from the contraband weighing about 2.5 litres of arrack. The sample and the container with the remnant liquor were seized after preparing the seizure mahazar. Signatures of independent witnesses, who were present at the spot, have also been procured in the mahazar. The accused was arrested after complying with the legal formalities. 4. The accused along with the remnant contraband, sample drawn therefrom and the seizure mahazar prepared at the spot were produced before the Koodal Police Station on the day itself and Crime No.45/2006 was registered. The investigation was conducted by the very same Officer. The property list was prepared and the samples seized were forwarded to the Judicial **CRL.A.No. 1009 of 2009** **4** First Class Magistrate Court-I, Pathanamthitta. The samples were forwarded by the court to the Chemical Examiner's Laboratory and the report evidencing the presence of ethyl alcohol in the properties forwarded for examination, was obtained. The investigation was concluded and a final report was prepared and laid before the Judicial First Class Magistrate Court-I, Pathanamthitta, chargesheeting the accused for the offence under Section 8(1) & (2) of the Act. 5. Charge was framed after hearing the learned Public Prosecutor and the learned counsel for the defence. The accused pleaded not guilty, when the charge was read over and explained to him and faced trial. The prosecution has let in oral evidence of PWs.1 to 6 and documentary evidence as Exts.P1 to P7. The material objects were also got marked as MO.1 series, MO2 and MO.3 series. A single witness was examined by the defence as DW1. On appreciation of the evidence and appraisal of the rival contentions advanced by the respective counsel representing the parties, the court below found the accused guilty and convicted and sentenced him vide the judgment under challenge. 6. Sri.C.S. Manilal, the learned counsel advanced arguments on behalf of the accused and Smt.Rekha C.Nair, the learned Public **CRL.A.No. 1009 of 2009** **5** Prosecutor addressed this Court on behalf of the complainant/ State. Both of them were heard elaborately on their rival contentions. 7. Sri.C.S. Manilal, the learned counsel for the accused has confined his arguments mainly to four points. The first point was that the forwarding note though claimed as prepared and forwarded to the Judicial First Class Magistrate Court-I, Pathanamthitta by the prosecution, the same was not available with the records. According to the counsel, the seizure mahazar marked in evidence is silent about affixture of the sample seal upon the remnant contraband and the sample seized from the spot. The sample seal impression was also not affixed in the seizure mahazar. According to him, the officials examined by the prosecution as PWs.4 and 6, though have tendered consistent versions about the affixture of sample seal on the sample, the remnant contraband liquor and the seizure mahazar, their versions vary with respect to the nature of the sample seal alleged as affixed. 8. According to the counsel, circumstances as stated above would leave a space for the defence to contend about possibility of tampering of the property. Drawing my attention specifically to the **CRL.A.No. 1009 of 2009** **6** evidence on record, the learned counsel contended that the forwarding note is not marked in evidence by the prosecution. According to him, forwarding note is the only document by which the sample seal impression is made available to the court as well as the chemical examiner to identify the samples as drawn from the contraband. The prosecution has no case that forwarding note was prepared and produced before the court, so as to make it available to the Chemical Examiner. They don't even have a case that the sample seal impression was made available to the court in any other manner. It is in such a circumstance that the Chemical Examiner had noted in Ext.P2 Chemical Examination Report that the seals on the bottle were intact and found tallied with the sample seal provided. The learned counsel urged on its basis that the sample received by the Chemical Examiner's Laboratory and examined by the Chemical Examiner therein cannot be taken as drawn from the contraband liquor seized from the spot. According to the counsel, the claim of the prosecution that sample seal was affixed on the remnant liquor and the sample drawn therefrom, from the spot is only liable to be defeated when viewed in the backdrop of the attending circumstances of inconsistency in the versions of the official witnesses regarding that, lack of description **CRL.A.No. 1009 of 2009** **7** about that in the seizure mahazar and failure to produce and mark the forwarding note with the sample seal impression affixed therein, in evidence. 9. The second argument advanced by the learned counsel was that the signature of the accused was not obtained in Ext.P1 seizure mahazar prepared on the date of seizure as well as on the labels affixed on the properties seized from the spot. According to him, the plea of the accused during examination under Section 313(1)(b) was that at the relevant time, he was laid up due to a fracture on hand, sustained following a fall from a tree and was falsely implicated by the S.I. of Police, Koodal Police Station due to his refusal to accede to certain demands by the latter in a complaint lodged by his neighbour relating to a property dispute. It is his case that he was not available at the station on the alleged date of seizure of the properties. According to the learned counsel, the plea of the accused has to be considered taking into account of the want of signature of the accused in Ext.P1. According to the counsel, the presence of the accused was reported by the investigating officer in Ext.P1, towards the last part of it, but his signature was not obtained. It is contended by him that if the accused was very much available there, the investigating officer **CRL.A.No. 1009 of 2009** **8** could have procured his signature in Ext.P1, the seizure mahazar instead of recording about his presence alone, therein. It is further contended that if the accused was there and seizure of contraband was effected from him, his signature could have been obtained by the authority who seized the same, in Ext.P1. The want of signature in Ext.P1 and other documents allegedly prepared from the spot, is sufficient to support his argument on behalf of the accused that the latter was not available at the spot, arrested from his house only on 28.4.2003 and was falsely implicated into the case in question. 10. The third argument put forth by the learned counsel was that there was inordinate delay for the prosecution to complete the investigation process and lay the final report before the Judicial First Class Magistrate Court-I, Pathanamthitta. According to him, unnecessary delay, if not explained by cogent reasons by the investigating officer is fatal to the prosecution. 11. The fourth argument advanced by the learned counsel was that only a single sample was drawn from the contraband seized from the spot. The learned counsel urged that by failing to draw more samples from the contraband, the prosecution has violated the provisions of the Excise Manual, which specifically **CRL.A.No. 1009 of 2009** **9** direct him to do so. According to him, law was settled on the point by judicial pronouncements of this Court, viz., Asokan v. State of Kerala (2016 (2) KLT 762) and an unreported decision rendered by another Single Bench of this Court in Crl.A.No.47/2006. It is contended by the counsel that in view of the violation of the provisions of the Abkari Manual, the trial in the case is vitiated. Raising the contentions as above, the learned counsel canvassed for a reversal of the judgment under challenge. 12. Per contra, the learned Public Prosecutor contended that the arguments advanced by the learned counsel for the accused are untenable ones. According to him, the search and seizure have been effected after complying with all the procedural formalities prescribed by the Act and the accused failed to point out any illegality, impropriety or infirmity so as to call for interference of this Court. According to him, the contentions of the learned counsel are liable to be discarded and the judgment under challenge is only to be confirmed. 13. In the backdrop of the rival contentions so raised by the learned counsel representing the accused and the learned Public Prosecutor, the evidence on record is appreciated. As rightly put by the learned counsel, the forwarding note was not produced and **CRL.A.No. 1009 of 2009** **10** marked in evidence by the prosecution. The S.I. of Police, Koodal Police station was examined as PW6. He was the leader of the Patrolling team on the alleged day. According to him, on 27.04.2006 at 6 p.m., while they were on patrol duty, they came across the accused who was carrying a plastic bottle containing some liquor, glass and a big shopper and was intercepted. The big shopper was examined and another bottle containing liquor was also found. They got convinced on smelling and tasting of the liquor found in the plastic bottles in the possession of the accused that it is nothing, but arrack. After complying with the formalities of sampling and sealing, the contraband liquor along with the sample drawn therefrom, were seized. Ext.P1 seizure mahazar was prepared and the accused was also arrested. The signatures of independent witnesses available at the spot were procured in the labels as well as in the seizure mahazar. The labels were affixed on the bottle containing remnant liquor and container containing the samples drawn therefrom. Thereafter, those along with the accused have been produced at the Police Station and the crime in question was registered alleging commission of the offence. 14. PW-4 was the Head Constable, who had accompanied the S.I. of Police on the alleged day. He gave version in strict **CRL.A.No. 1009 of 2009** **11** corroboration with that of PW6. He has also mentioned about the presence of independent witnesses at the spot at the relevant time. The independent witnesses were also examined by the prosecution as PWs.1 & 2. It is pertinent to note that those witnesses gave versions, denying to have witnessed the incident and thus they turned hostile. The attestation of Ext.P2 and the affixture of the labels on the bottles containing the remnant liquor and sample were admitted by PWs.1 and 2, but claimed those as put from the Police Station. Since the versions of PWs.4 and 6, the officers among the detecting team corroborate each other with respect to the detection and seizure of the contraband, the prosecution case is not liable to be disbelieved logically. But, as pointed out by the learned counsel, the witnesses differ in their versions about the nature of the impression seal affixed. PWs.4 and 6 being official witnesses, if at all the case of the prosecution that sample seal was affixed on the properties from the spot is taken as true, they, being witnesses to the incident, must be able to give consistent versions. It is relevant to notice from the version of PW6 that impression seal was affixed on the remnant liquor and the sample and that was the station seal. But, he failed to recollect the nature of the impression in the seal so affixed. PW4 gave version to the **CRL.A.No. 1009 of 2009** **12** effect that the seal was affixed on the properties seized by PW6 and it was a metal seal. With regard to the impression, the seal carries, he has spoken that it was akin to the alphabet 'G'. When he was confronted with the seal impressed on MO1 and MO1(a), he has stated that it was not fully visible. Ext.P1 is the seizure mahazar, prepared by PW6 from the spot on 27.04.2006. As per the description in Ext.P1, the remnant liquor and the samples drawn therefrom were sealed and affixed with stickers containing signatures of himself and independent witnesses. In Ext.P1, there is total want of description about affixture of sample seal, either on the remnant liquor or on the sample drawn therefrom. The sample seal is also not found as affixed in Ext.P1. As already found, the forwarding note was not produced and got marked in evidence by the prosecution. Therefore, evidently, there is total want of evidence regarding the nature of the sample seal claimed by the prosecution to have been affixed on the properties from the spot. If the sample seal was affixed on the properties at the spot of detection and seizure itself, as claimed by PW6 and PW4, they must have been able to give consistent versions on its nature. If that be so, Ext.P1 seizure mahazar also must have contained a description therein about that. As already discussed, inconsistency looms **CRL.A.No. 1009 of 2009** **13** large in the evidence of PW4 and PW6 with regard to the nature of the sample seal allegedly affixed on the properties from the spot. Therefore, it follows that either of the witnesses cannot be relied on their versions about the affixture of sample seal from the spot. 15. Contextually, Ext.P2 also has some relevance. It is reported in Ext.P2 by the Chemical Examiner that the seals on the bottles were intact and found tallied with the sample seal provided. What was the basis for reporting so is not known. The Chemical Examiner did not describe in his report about the nature of the seal available for comparison of the seal affixed on the sample forwarded to it for chemical analysis and which helped her in the identification of those as the sample drawn from the contraband liquor seized from the spot. Normally, a sample of the impression will be made available by the prosecution to the Chemical Examiner through a forwarding note which provides in it, a specific column for its affixation for the purpose of comparison. In the case on hand, the forwarding note is not produced and marked in evidence. The witnesses of the prosecution, who had dealt with the procedures of the seizure, sampling and sealing, when examined before the court failed to utter a word regarding the impression of sample seal in the seizure mahazar prepared from **CRL.A.No. 1009 of 2009** **14** the spot, which Is produced and marked in evidence as Ext.P1 in this case. Therefore, the only inference possibly be drawn from the silence of the official witnesses was that the sample seal, in fact, was not affixed on the seizure mahazar at the time when it was prepared. The witnesses have also not spoken a case that the sample seal was also forwarded to the Office of the Circle Inspector of Police along with the sample, remnant liquor and seizure mahazar. This raises a suspicion as to the affixture of sample seal on the properties from the spot. This is all the more strengthened by the non-description of it in Ext.P1 seizure mahazar. Therefore, the question remains for consideration is the basis upon which the Chemical Examiner was convinced about the similarity of the seal on the sample with the sample seal, when absolutely no evidence was available on record to show that forwarding note was prepared and sent to the Chemical Examiner along with the sample sent for analysis. When the forwarding note itself is not produced and when no explanation for non-production of the same is forthcoming, I am constrained to take a view that the prosecution has failed to prepare that. In the circumstances as aforesaid, the argument of the learned counsel that tampering of the sample forwarded to the Chemical Examiner's Laboratory cannot be ruled **CRL.A.No. 1009 of 2009** **15** out, assumes relevance. 16. When it is specifically incorporated in Ext.P2 by the Chemical Examiner that the items received by him in the laboratory for examination bore sample seal and the same tallies with the sample seal provided as such, then the conclusion possibly be drawn was that the samples forwarded contain the sample seal impression and one such was also separately made available to him for his comparison. In the case on hand, the forwarding note is not available in evidence. PW6 has no case that the forwarding note was prepared by him during the course of investigation. PW6 has also not spoken that the sample seal impression was made available to the Chemical Examiner in any other manner. Ext.P2 is also silent about the manner in which the sample was identified by the Chemical Examiner as the one drawn from the contraband liquor seized from the spot. In the absence of any evidence with regard to the sample seal affixed on the sample and the remnant contraband liquor and in the absence of a case for the prosecution that any such seal was made available to the Chemical Examiner by them through any of the materials marked in evidence, the comparison and identification claimed to have been done by the Chemical Examiner is suspicious. In the said circumstances, the **CRL.A.No. 1009 of 2009** **16** argument of the learned counsel appears meritorious and tenable. 17. The argument secondly advanced by the learned counsel was that the signature of the accused does not find a place in the labels affixed in the contraband and the sample. According to him, Ext.P1 seizure mahazar also does not contain the signature of the accused and therefore, he urged to this Court to take a view that the accused was not available at the spot at the relevant time when seizure of the property was effected. In the case on hand, the specific defence taken by the accused was that he was arrested from his house on 28.03.2003 and falsely implicated into the case. The independent witnesses, who are prosecution witnesses, have also tendered evidence to the effect that their signatures in the seizure mahazar were procured from the Police Station and not from the spot of seizure. The provisions of the Act do not direct the officers authorised to conduct seizure, to obtain the signature of the accused in any of the documents prepared in the case. But, when viewed in the backdrop of the circumstances projected by the accused as aforesaid, the argument advanced cannot be said to be without any relevance. 18. The third argument was that only a single sample was drawn from the contraband in violation of the provisions of the **CRL.A.No. 1009 of 2009** **17** Abkari Manual and that would be fatal to the prosecution. The learned counsel has relied on the dictum of a Single Bench of this Court in **Asokan v. State of Kerala** [2016 (2) KLT 762]. Only a single sample was drawn from the contraband in that case, and the court held that the prosecution by doing so, has violated the mandatory requirement in the provisions of the Excise manual and consequently, the appellant was acquitted. It is pertinent to note that **Asokan** 's case (supra) was rendered by a learned single Judge based on an unreported ruling of another single Bench in Crl.Appeal No.47/2006. There is total want of a mandate in any of the provisions of the Act or the Rules framed thereunder to draw more than one sample from the contraband seized. Even on a perusal of the Manual referred to by the learned Single Judges of this Court in the aforesaid decisions, such a mandate could not be noticed. The Abkari Manual only contains certain departmental directions at the administrative level to the Excise Officers for compliance. Those cannot be taken to have any impact on the trial, liable to vitiate it. It is also a fact that the very same learned Single Judge in view of his doubt, has referred the matter for consideration to a larger Bench and that is pending orders. 19. The further question to be considered is whether **CRL.A.No. 1009 of 2009** **18** inordinate delay has occurred in the investigation process and because of that the trial held by the prosecution in the case is vitiated. From the evidence available, it is revealed that the offence was detected and the contraband was seized on alleged 27.04.2006. PW6 has laid a final report after conclusion of the investigation. Though the final report was prepared on 20.12.2006, the date borne out from the endorsement of the Judicial First Class Magistrate Court-I, Pathanamthitta thereon indicates that it was received by the court only on 03.02.2007. As per the prosecution, the detection was on 27.04.2006. It is convincingly established from the FIR registered as Ext.P5 that the investigation was also started on the very date itself. It took about eight months for the investigation to be completed and the final report to be prepared. It took yet another one and a half months for the final report to be filed before the court. Therefore, undoubtedly, unnecessary delay was occurred from the side of the investigating officer and he is bound to explain the delay by cogent reasons. It is true that the final report could be submitted only after obtaining the report of analysis from the Chemical Examiner's Laboratory. Ext.P2, the report of analysis evidences from its very face as prepared by the Chemical Examiner on 29.11.2006, but reached the court only on **CRL.A.No. 1009 of 2009** **19** 06.12.2006. It is also clear from the endorsement available in Ext.P2, made from the office of the Chemical Examiner that the samples were forwarded to the Chemical Examiner's laboratory from the Court only on 02.11.2006 and it was received by the Chemical Examiner on 23.11.2006. It may be that the delay in forwarding the sample was occurred from the court. But, in the absence of forwarding note in evidence, it cannot be stated precisely, whether the delay was caused by the court or by the Investigating Officer on account of his belated production of the properties before the court after seizure. Whatever may be the reason for the delay, the Act by Section 50, requires the investigating officer to explain the same by reasons. But, no such explanation in that regard is forthcoming from PW6, who was the investigating officer. It is true, an attempt was made by the prosecution to explain the delay by examining PW-5, who is the Junior Superintendent in charge of the thondi properties received at the court below, but his evidence did not serve the purpose. Therefore, this is a case wherein the investigation was delayed unnecessarily without reasons and the prosecution case, in view of the violation of the mandatory requirement under Section 50 of the Act is only liable to fail. In the case on hand, it is also pertinent to **CRL.A.No. 1009 of 2009** **20** note that the very same Officer has detected the offence, conducted the seizure and investigated the case, which is also not permissible by the Act. In view of the material flaws liable to affect the prosecution case as described supra, the Criminal Appeal is only to succeed. In the result, this Criminal Appeal is allowed. The finding of guilt of the accused under Section 8(1)and (2) of the Act and the order of conviction and sentence imposed by the impugned judgment are set aside. The bail bond executed by the accused is cancelled and the accused is ordered to be set at liberty forthwith. Sd/- **MARY JOSEPH, JUDGE.** //TRUE COPY// P.A. TO JUDGE SKK/020517