Raveendran s/o Thankappan v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943 ## CRL.A NO. 1051 OF 2007 [AGAINST THE JUDGMENT DATED 4.5.2007 IN SC 1025/2001 OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA] APPELLANT/ACCUSED: RAVEENDRAN, S/O.THANKAPPAN, PUTHEUVEL PUTHEN VEEDU, KALLUVILA, MELEVILAKOM, KAZHIVOOR DESOM, KANJIRAMKULAM VILLAGE. BY ADV SRI.BLAZE K.JOSE ## RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE, NEYYATTINKARA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI.RANJIT GEORGE, PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2022, THE COURT ON 2.2.2022 DELIVERED THE FOLLOWING: Crl.Appeal No.1051 of 2007 2 ## JUDGMENT The accused in S.C.No.1025/2001 on the file of the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara is the appellant herein. This appeal is filed by him being aggrieved by the conviction and sentence imposed upon him by the said court for the offence punishable under section 58(a) of the Abkari act. The sentence imposed upon him is rigorous imprisonment for one year and a fine of Rs.1,00,000/- with a default sentence of rigorous imprisonment for a period of three months. 2. The prosecution case is as follows: On 21.05.1998 at 12.30. PM, the Preventive Officer of the Neyyattinkara Excise Range Office while conducting patrol duty at Marappalam- Nellimoodu road near Marappalam junction, found the accused/appellant carrying a can which is having the capacity to contain 5 litres. As the movements Crl.Appeal No.1051 of 2007 3 of the appellant was suspicious, the Excise team approached him and questioned. Thereupon, on examining the contents of the can which the appellant was carrying, it was revealed that, it contains a liquid. The quantity found therein was 1½ liters. From the smell and taste of the said liquid, the inspection team realized that it was arrack and accordingly, the appellant was arrested from the spot. The can along with the liquid was seized and seals were affixed thereon. Immediately thereupon seizure mahazar and arrest memo were prepared. On the basis of the same, Crime No.16/98 was registered by the Excise Range office, Neyyattinkara and the accused as well as the articles seized were produced before the Magistrate on the very same date. Later, upon completing the investigation thereon, final report was submitted which was taken into file by the Judicial First Class Magistrate-II, Neyyattinkara as C.P.No.303/2000. After committal proceedings, the same was committed to the Additional Sessions Judge Crl.Appeal No.1051 of 2007 4 for trial of Abkari Act cases, Neyyattinkara where the same was tried as S.C.No.1025/2001. 3. In support of the prosecution case, they have examined PWs. 1 to 6, marked Exhibits P1 to P9 and MO1 was identified. After completing the prosecution evidence, the accused was questioned under Section 313 Cr.PC and the incriminating materials brought out during the course of trial were put to him. However, the appellant denied all the said materials and pleaded innocence. No defence evidence was adduced by the accused. 4. After evaluating the materials adduced by the prosecution, the Sessions Court arrived at the conclusion that, the prosecution was able to establish the guilt of the accused. Accordingly, the appellant was convicted and he was sentenced in the manner as mentioned above. This appeal is filed by the appellant challenging the aforesaid conviction and sentence. 5. Heard Sri. Blaze K.Jose, the learned counsel for the appellant and Sri. Ranjit George, Crl.Appeal No.1051 of 2007 5 the learned Public Prosecutor appearing for the respondent. 6. The learned counsel for the appellant contends that, the prosecution failed to establish the guilt of the appellant. It was pointed out that, the prosecution miserably failed in proving that, the liquid which was allegedly seized from the possession of the appellant, was subjected to chemical examination. By relying upon various judgments, it was contended by the learned counsel for the appellant that, in order to establish the guilt of the accused, the prosecution is obliged to establish every sequence of events right from the seizure of the article to the chemical examination conducted by the expert in this regard. It was pointed out that, in this case, the sampling was done by a ministerial officer of the court without proper compliance of any legal requirements. In such circumstances, it was pointed out that, no legal sanctity can be attributed to the said proceedings and it vitiates the entire prosecution Crl.Appeal No.1051 of 2007 6 case. It was also highlighted by the learned counsel that, Ext.P1 seizure mahazar does not contain the impression of the seal affixed on the can at the time of seizure of the same. This is also another circumstance which vitiates the prosecution case. On the basis of the same, it was contended that, the appellant is entitled for acquittal as the prosecution could not prove the offence against him beyond reasonable doubt. 7. On the other hand, learned Public Prosecutor seriously opposes the same. It was pointed out that, the evidence of PWs. 2 to 5 coupled with the contemporaneous documents such as Exts. P1, P2, P3 and P4 would clearly establish the guilt of the accused. In such circumstances, the learned Public Prosecutor prays for the dismissal of the appeal. 8. The crucial question arises is as to whether the prosecution has established the guilt of the accused or not. The main contention put forward by the learned counsel for the appellant is Crl.Appeal No.1051 of 2007 7 with regard to the authenticity of the sampling. In this case, PW2 and PW3 were the officers who were parties to the Excise Party which detected the offence. PW1 is the Preventive officer and PW3 is the Detecting officer. Their evidence would indicate that, when they were conducting patrolling duty, they found the accused with a can having a capacity of 5 litres of arrack. Since his movements were suspicious, he was intercepted and it resulted in the seizure of the articles in question. Immediately after the same, the appellant was arrested and the article was seized. Upon seizure, Ext.P1 seizure memo was prepared and the seals were affixed on the can with the signature of the appellant and attesting witnesses. The aforesaid seizure mahazar was prepared by PW3. PW4 is the Assistant Excise Inspector who registered the case and the occurrence report, which is Ext.P5. After preparing the necessary documents in this regard, he produced the accused and the articles seized before Crl.Appeal No.1051 of 2007 8 the court on the same day along with the necessary documents in this regard. 9. PW5 is the Thondi Section clerk of the jurisdictional Magistrate Court. It is evident from the deposition of PW5 that, the thondi was verified and received by her from the Excise Party. Thereafter, she received the specimen impression of the seal and she had compared that impression with the impression found on the seal of the can. Thus, after verifying the genuineness of the seal and the tamper proof condition thereof she received the same and registered the said article by making necessary entry in page 77 of the Thondy Register as T-198/98. The extract of the Thondy Register was marked as Ext.P9. Later, on the basis of the oral direction issued by the learned Magistrate, she had broken the tamper proof seal on the can and extracted 150 ml. of liquid in an empty bottle which was closed tightly and was covered with a cloth. The seal of the court was also affixed thereon. The crime number as well as the thondi Crl.Appeal No.1051 of 2007 9 number was also specified in the aforesaid sample bottle. Later, after obtaining the counter signature of the learned Magistrate thereon, the same was forwarded to chemical analyst for examination. Exhibit P7 is the chemical analysis report. From the aforesaid document, it is evident that, the sample contained ethyl alcohol and accordingly it supports the prosecution case. These are the materials which are relied upon by the prosecution for establishing the guilt of the accused. 10. On examining the aforesaid materials, it can be seen that, there is some force in the contentions put forward by the learned counsel for the appellant. In the decision in Baburaj v. State of Kerala [2021(6)KHC 92], this Court considered the question as to the requirement of strict compliance of the provisions of Abkari Act for the purpose of holding a person guilty of the offences under the said Act. After elaborately considering large number of judgments of the Hon’ble Supreme Crl.Appeal No.1051 of 2007 10 Court and this Court, it was observed by this Court that, strict compliance of the provisions is mandatory for establishing the guilt. In the said judgment, the question as to the competence of the ministerial staff of the jurisdictional court for drawing samples from the articles seized was also specifically dealt with. After discussing various judgments rendered by this Court, it was categorically held that, the Thondi Section clerk is not competent to carryout sampling, even if the same is done on the basis of instructions from the learned Magistrate in this regard. In paragraph 35 of the said judgment, it was observed as follows: _“35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water - tight compartments provided for the investigator and the Court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the Investigating_ Crl.Appeal No.1051 of 2007 11 _Officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala (2019 KHC 3526 : 2019 (2) KLT 974), wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala (2020 KHC 221 : 2020 (2) KLT 590 : ILR 2020 (2) Ker. 164 : 2020 (2) KLJ 742), this Court had an occasion to consider whether the Magistrate has the power or authority to direct the Investigating Officer to draw the sample from the contraband produced before the Court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory.”_ Thus it is evident that, going by the principles laid down by this Court in the aforesaid judgment, the act of sampling is a matter comes within the realm of powers of investigating officer. The Magistrate has no power to give any instruction to the ministerial officers of the court to do the sampling and forwarding the same to the chemical analysis report. When the materials available in this case is considered in the light of the principles laid down as above, it can be seen that, Crl.Appeal No.1051 of 2007 12 the same are squarely applicable in this case. Going by the evidence of PW5, it is evident that, it was the clerk who handled the Thondy Section who carried out the sampling in this case. It is also a relevant aspect in this regard that, there are no contemporaneous documents available indicating the manner in which the sampling was done. It is not clear as to whether, the breaking open of the sealed can and taking samples therefrom were done in the presence of any responsible officers. Lack of such documents would seriously affect the veracity of the samples. In such circumstances, it cannot be safely concluded that, the sample which was subjected for chemical analysis was drawn from the liquid which was seized from the possession of the appellant. 11. There is yet another aspect which affects the prosecution case. As pointed out by the learned counsel for the appellant, Ext.P1 seizure mahazar does not contain the specimen impression of the seal which was affixed on the can at the time of Crl.Appeal No.1051 of 2007 13 its seizure. The necessity to have the impression of the seal on seizure mahazar was considered by this Court in various judgments including Moothedath Sivadasan v. State of Kerala and Another [2021(1)KLT 744]. As the principles laid down in the said judgment, lack of specimen impression of the seal on seizure mahazar is a crucial lacuna in the prosecution case. In this case, there are several aspects which throws suspicion on the veracity of the sample which was subjected to chemical analysis. Firstly, even though it is asserted by PWs.2 and 4 that, immediately after the seizure of the said article, the can was sealed in the presence of the appellant and the witnesses, there is no evidence substantiating the same. Going by the evidence of PW5, the seal claimed to have been affixed on MO1 can was broken by PW5 and there is no evidence on record as to the manner in which the same was broken apart from the evidence of PW5. As mentioned above, no contemporaneous documents required for substantiating the genuineness of the Crl.Appeal No.1051 of 2007 14 said transaction was prepared. The evidence of PW5 does not indicate the presence of any competent or responsible officers in this regard at the time when the sample was taken. Thus, when all these aspects are taken into consideration, the only conclusion possible is that, the sampling done by PW5 was neither with any authority nor the same can be relied upon for the purpose of establishing that the said sample was taken from the liquid seized from the possession of appellant. It is a well settled position of law that in order to hold the accused guilty of the offences under Abkari Act, the entire chain of circumstances leading from the seizure of the article until the chemical analysis report is obtained are to be clearly established with unimpeachable evidence. All the stages of the transactions are to be clearly explained with substantiating materials thereof. In this case, when we examine the materials available on record, it can be seen that, the entire links in between the seizure of the contraband article and obtaining Crl.Appeal No.1051 of 2007 15 of chemical analysis report are not proved. Sampling is one of the most crucial aspect to be proved by the prosecution and due to the reasons mentioned above, it is highly suspicious. This would indicate that, the materials available on record is not sufficient to conclude that, the liquid which was taken possession from the appellant was subjected to chemical analysis report and consequently it cannot be held that, the liquid which was allegedly seized from the possession of the appellant is a contraband article which is attracting the offences under the Abkari Act. In such circumstances, in the light of the failure on the prosecution to establish the same, I have no hesitation to hold that the prosecution failed in proving the guilt of the accused beyond reasonable doubt. The finding of conviction entered into by the Sessions Court is, therefore, unsustainable and liable to be interfered with. In the result, this appeal is allowed and the conviction and sentence imposed upon the appellant Crl.Appeal No.1051 of 2007 16 herein by the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara in S.C.No.1025/2001 is hereby set aside. The appellant/accused found not guilty of the charges and accordingly he is acquitted. The bail bond executed by the appellant shall stand cancelled. Sd/- ZIYAD RAHMAN A.A. JUDGE pkk