Rati, D/o. Sarojini v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR** **MONDAY, THE 16TH DAY OF JANUARY 2017/26TH POUSHA, 1938** **CRL.A.NO. 1368 OF 2004 (B)** **---------------------------** **AGAINST THE ORDER DATED 31-07-2004 IN S.C.NO. 1229/2002 OF THE ADDITIONAL SESSIONS COURT, FAST RACK (ADHOC), TRIVANDRUM** **APPELLANT/ACCUSED:: ---------------------** **RATI, D/O. SAROJINI, PANAYAVILAKOM VEEDU, VAIKKALATHU MURI, ATTIPRA VILLAGE, TRIVANDRUM.** **BY ADV. SRI.V.R.GOPU** **RESPONDENT/COMPLAINANT::** **-------------------------** **STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, KAZHAKUTTOM RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.V. ANANTHAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **DST** ## **B. SUDHEENDRAKUMAR, J.** **-------------------------------Crl.Appeal No.1368 of 2004** **----------------------------------** Dated this the 16[th] day of January, 2017 ## **JUDGMENT** The court below convicted the appellant under Section 8(2) of the Abkari Act and sentenced her thereunder to rigorous imprisonment for two years and a fine of Rs.1,00,000/- with a default clause for rigorous imprisonment for six months. 2. The prosecution allegation is that on 20.05.2000 at about 11.45 a.m., the appellant was found in possession of one litre of arrack in contravention of the provisions of the Abkari Act. 3. Before the trial court, PW1 to PW3 were examined and Exts.P1 to P5 were marked for the prosecution besides identifying MO1. No evidence was adduced on the side of the appellant. 4. Heard. Crl.Appeal No.1368 of 2004 2 5. The learned counsel for the appellant has argued that since there is no evidence to prove the drawing of the sample from the contraband, the appellant is entitled to benefit of doubt. It appears from Ext.P3 property list that a can containing one litre of arrack was produced before the court as thondi. PW2 effected seizure of the contraband article. PW2 stated that he seized the contraband as such and sealed the same and produced before the court. PW3 was the Excise Inspector, who filed the final report before the court. There is absolutely no evidence before the court with regard to the drawing of the samples in this case. The endorsement on the reverse side of Ext.P3 would show that sample was drawn from the contraband after the production of the same before the court. However, the thondi clerk of the court was not examined to prove the drawing of the sample and forwarding the same to the laboratory in a tamper-proof condition. 6. In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed thus: “Without the link evidence of actual Crl.Appeal No.1368 of 2004 3 sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” In Ravi v. State of Kerala [2011 (3) KLT 353], the Division Bench of this Court held that the prosecution in a case under the Abkari Act could 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 by change of hands in a tamper- proof condition. Since the thondy clerk in this case was not examined before the court, there is no evidence with regard to the drawing of the sample from the contraband and sending the same to the laboratory in a tamper-proof condition. Since the drawing of the sample from the contraband and sending the same to the laboratory in a tamper-proof condition could not be proved, there cannot be any guarantee that the sample analysed in the Crl.Appeal No.1368 of 2004 4 laboratory was the sample drawn from the contraband seized from the appellant and hence, the appellant is entitled to benefit of doubt. 7. It is also to be noted that the forwarding note was not marked before the court. However, the copy of the forwarding note is available with the records transmitted to this Court, which would show that it does not contain the sample of the seal at the space provided for the same. In Krishnan H. v. State [2015 (1) KHC 822] the court held that the absence of sample seal at 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 note. In this case, no evidence was adduced by the prosecution to prove that the original forwarding note contained the sample seal. In view of the above reasons, the prosecution could not establish the link evidence to prove that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the appellant is entitled to benefit of Crl.Appeal No.1368 of 2004 5 doubt. 8. It is also to be noted that even though the incident in this case was on 20.05.2000, the final report was filed before the court after completing the investigation only on 03.12.2001. This would show that there was a delay of one year and six months in conducting the investigation. No explanation had been given by the prosecution as to why there was inordinate delay in conducting the investigation and filing the final report before the court. Since there was unexplained delay in conducting the investigation and filing the final report before the court, the same is, no doubt, fatal to the prosecution as held in Krishnan (supra), particularly when the quantity of contraband involved in this case was only one litre. 9. The learned counsel for the appellant has argued that since the arrest of the appellant and the seizure of the contraband were done by an Assistant Excise Inspector, the appellant is entitled to be acquitted as the Assistant Excise Inspector was not an Abkari Officer till 6 Crl.Appeal No.1368 of 2004 8.5.2009. S.R.O. No.361/2009 dated 8.5.2009 came into force only with effect from 8.5.2009. As per the said S.R.O., the Assistant Excise Inspector of the Range was empowered to exercise all powers and perform all duties of the Excise Inspectors subject to the control of the Excise Inspectors. However, the S.R.O. prevailing during the time of commission of the offence in this case was S.R.O. No.234/1967, as per which the Assistant Excise Inspector was not an Abkari Officer empowered to exercise the powers and perform the duties under the Abkari Act. 10. The Court in Subrahmaniyan v. State of Kerala [2010 (2) KHC 552] held that the Assistant Excise Inspector was not a competent and authorised Officer under the Abkari Act, especially under Sections 4(d) and 70 of the Abkari Act as per S.R.O. No.234/1967 and hence, the seizure and arrest made by the Assistant Excise Inspector were without authorisation and jurisdiction. 11. The court in Sasidharan v. State of Kerala [2012 (2) KLT 392] quoted the decision in Subrahmaniyan 7 Crl.Appeal No.1368 of 2004 (supra) with approval and held that the Assistant Excise Inspectors were not empowered under the Abkari Act prior to 8.5.2009 to perform the duties under Sections 31, 32, 34, 35 and 38 to 53 of the Abkari Act. 12. In this case, the incident was on 20.05.2000, which was prior to the notification, namely S.R.O.No.361/2009. Therefore, in view of the above decisions, it has to be held that PW2, the Assistant Excise Inspector, who had made the arrest of the accused and seizure of the contraband was not empowered under the Act as it stood then, to perform the duties under the Abkari Act. For the said reason also, the prosecution fails. 13. The above vital aspects were not considered by the court below while appreciating the evidence. For the said reason, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. In the result, this Appeal stands allowed setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant is Crl.Appeal No.1368 of 2004 8 acquitted for the said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty. Sd/- **B. SUDHEENDRAKUMAR, JUDGE** STK //TRUE COPY// //P.A. TO JUDGE//