## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MRS. JUSTICE ANNIE JOHN**
**MONDAY, THE 07TH DAY OF JANUARY 2019 / 8TH KARTHIKA, 1940**
**CRL.A.No. 1307 of 2006**
**AGAINST THE JUDGMENT DATED 30.06.2006 IN SC 903/2001 ON THE FILE OF THE COURT OF ADDITIONAL SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA**
## **APPELLANTS/ ACCUSED NOS. 2 AND 3 :**
**1 RAVI, S/O.CHELLAPPAN, MEPPARUVILA VEEDU, NEAR KALIYAL H.S.S., VILANCANCODE TALUK.**
**2 JOSEPH, SO. ALLIS, CHEMBRAMKACAMVILA VEEDU, NEAR KADAYALUMOODU H.S.S., VILANCANCODE TALUK.**
**BY ADV. SRI.S.MOHAMMED AL RAFI**
## **RESPONDENT/ COMPLAINANT :**
**STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.**
**BY SRI.SWAMIDASAN K.N., PUBLIC PROSECUTOR**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON 07.01.2019 PASSED THE FOLLOWING :**
**CRL.A.No. 1307 of 2006**
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## **JUDGMENT**
The appellants are accused Nos.2 and 3 in SC.No.903/2001 on the file of the Court of Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara, alleging commission of offence punishable under Section 55(a) of the Kerala Abkari Act. This case arose from Crime
No.4/2000 of Vellarada Police Station.
2. The prosecution case is that the Sub Inspector of Police, Vellarada Police Station, on 02.01.2000, while he was conducting patrol duty, reached 200 metres west of Kadukara junction at Arattukuzhi-Kadukara road, at Vellarada junction
and at that time, he found both the appellants herein, each carrying a 20 litre black jerry Can on their head, which on examination were found to be filled with arrack and the first accused was walking along with them and accordingly it was alleged that the three accused possessed the
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contraband in contravention of the provisions of the Kerala Abkari Act. According to the prosecution, the first accused immediately took to heels on seeing the police and the appellants were questioned and taken into custody. Thereafter, Crime No.4/2000 was registered against the
appellant and the first accused.
3. The prosecution examined 5 witnesses,
PW1 to PW5 and Exts.P1 to P8 documents and MO1 to
MO2 material objects were marked. No defence evidence was adduced.
4. After evaluating the entire evidence adduced by the prosecution and defence, the lower court has found that the appellants are guilty of offence punishable under Section 58 of the Abkari Act and sentenced them to undergo rigorous imprisonment for a period of 4 years each and to pay fine of Rs.1 lakh each in default of which to undergo rigorous imprisonment for a period of six months each. The first accused was acquitted. Highly aggrieved by the judgment of conviction and
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sentence passed by the Additional Sessions Judge, this appeal has been preferred.
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independent evidence to corroborate the interested testimony of the police officials PW3 and PW4. It is pertinent to note that PW2, a mahazar witnesses to Ext.P1, totally denied the prosecution case including his signature shown in Ext.P1. The Investigating Officer did not take
any steps to extract the sample from the contraband at the place of occurrence itself. Thus, severe prejudice was caused to the appellants on account of the delay in extracting the sample from the contraband and forwarding the same for chemical examination. The offence was detected by the Sub Inspector of Vellarada Police Station, on 02.01.2000, while he was conducting patrol duty and as he reached 200 metre west to Kadukara junction, at Aarattukuzhi-kadukara road at Vellarada Desom, Vellarada Village, he found the accused 2 and 3 in this case, each carrying a
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20 litre black jerry Can on their head, which when examined were found to be filled with arrack and A1, who was walking in front of them flew away from the place of occurrence. When the appellants were intercepted and on examination of the Can in their head, it was found to be full of illicit arrack. They were arrested immediately along with contraband articles.
6. There were five charge witnesses to the
prosecution side, of whom CW4 was given up by the learned Public Prosecutor and others were examined as PWs 1 to 4. Apart from that, prosecution examined PW5, the Thondi Section Clerk of the concerned court in order to prove the validity of Ext.P7 Chemical Examination Report. The attesters to Ext.P1 mahazar in this case were examined as PWs 1 and 2. PW1 admitted his signature in Ext.P1 mahazar, but turned hostile without subscribing to the contents thereof. PW2 is another person, who have denied to have affixed his signature in Ext.P1. Even though, PW1 and PW2 were thoroughly
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cross-examined, nothing was brought out to establish the case of the prosecution. PW3 and PW4 are the police officials. PW3 is the Police Constable, who accompanied PW4, the Detecting Officer, the Sub Inspector of Vellarada Police Station. He has deposed in terms of the
prosecution case asserting that while they were on patrol duty, they saw the accused person and A1 and the appellants were carrying jerry Can on their head with full of arrack. It was also revealed that the first accused was the owner of the contraband articles. But, he flew away from the place of occurrence. PW3 would further depose that the Sub Inspector had prepared mahazar at the place of occurrence and Cans were sealed and both Cans were of 20 litres size each and they were full of arrack. PW3 has identified MO1 series which was seized from the appellant. He has also identified the appellant, who was standing on the dock. PW3 was questioned regarding the seizure, sealing of the contraband items etc. The lower
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court has relied on the evidence of PW3 and stated that his evidence was cogent and clear to the prosecution story of occurrence. PW4 is none other than the Detecting Officer, who has also deposed in terms with the evidence of PW3.
7. According to them, there were 3 persons
on the place of occurrence and after that A1 flew away and others were found along with the jerry Can. According to him, after smelling and tasting, it was found that the Can contain arrack. Two Cans were seized from the possession of the appellant after preparing Ext.P1 mahazar. PW4 identified the FIR registered by him, marked as Ext.P2, the Thondi List as Ext.P3, the Remand Report as Ext.P4, the Arrest Memo (2) in numbers as Ext.P5 series. The Address Report regarding the first accused was marked as Ext.P6. He has also stated that he has furnished a forwarding note to the concerned Magistrate's Court for the purpose of effecting sampling and forwarding the same to the Chemical Examiner. The Chemical
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Report received from the Chemical examiner was marked as Ext.P7. PW4 identified MO1 series as the one which was seized from accused 1 to 3. It was also stated by PW4 that he has prepared forwarding note and produced before the Magistrate. But, no such forwarding note is seen to have marked in this case. The first accused in
this case was not arrested. Then he surrendered
before the committal court. It is very crucial to
note that PW5 is the Thondi Clerk, who was examined before the court below. He had deposed that on 03.01.2000, Thondi items in Ext.P3 were received in court and that she registered the same
as T 3/2000 in page 2 of the Thondi Register,
which contains her handwriting and having the same being identified, it was marked as Ext.P8 and that
on the orders of the concerned Magistrate, she extracted sample liquid for chemical analysis and forwarded it to the Examiner for which there is entry in Ext.P8.
8. So, from the evidence of PW5, it is
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proved that the samples were not taken in the presence of the appellants and it was not properly labelled with signature of the appellants, witnesses and Detecting Officer. Instead of that, two Cans seized from the appellants were sealed and produced before the concerned Magistrate and the Thondi clerk, after obtaining the order of the Magistrate has taken the liquid into bottle and sent it for chemical examination. It is true that
the contraband articles were produced before the Magistrate Court and the samples were seen to have taken by MOs and sent it for chemical analysis. Apart from the oral testimony of PW1, no other evidence is forthcoming to prove that these contraband articles were taken from the same Can after opening the seal and sent it for chemical analysis. Ext.P7 is the Chemical Analysis Report, which show that two sealed sample bottles with marks 1 and 2 containing 180ml. of clear and colourless liquid involved in Crime No.4/2000 of the Vellarada Police Station, which is the instant
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case reached the Chemical Lab for analysis with seals intact and after analysis, the report was furnished which would show that the liquid contained 24.32% and 24.79% by volume of Ethyl Alcohol.
9. Now, the only question to be considered
is whether the sample, which was taken by PW5, the Thondi Clerk is sufficient enough to establish that those contraband articles were seized from
the possession of the appellants. What prevented the Detecting Officer from taking the sample from the spot in the presence of the appellants is not explained also. PW1 and PW2 were two independent
witnesses, but they were not signatory and they
were not witnesses for taking sample from MO1 and MO1(a) Can.
10. Except the oral testimony of PW1, no
other evidence was forthcoming to prove that sample was properly taken from MO1 and MO1(a) and send it for chemical analysis. So, the benefit of doubt was in favour of the appellant and it was
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argued that the sample was not properly taken in the presence of the appellant is also established. Moreover, PW5 Sub Inspector of Police is the Detecting Officer as well as the Investigating Officer in this case.
## 11. In _**Mohan Lal v. State of Punjab [2018**_
_**(3) KLT 852 (SC)]**_ , it has held that a fair
investigation, which is but the very foundation of fair trial, necessarily postulates that the
informant and the investigator must not be the
same person. It is also held that a fair trial to
an accused, a constitutional guarantee under
Article 21 of the Constitution, would be a hollow
promise if the investigation in a NDPS cases were
not to be fair or raises serious questions about its fairness apparent on the face of the
investigation. In a criminal prosecution, there
is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so,
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eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair.
On this ground as cited above, I find that
the appellants are entitled to get acquittal as prayed for.
In the result this appeal is allowed. The
conviction and sentence imposed on the appellants
in S.C.No.903/2001 on the file of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara is hereby set aside. They are set at liberty forthwith. The bail bond, if any
executed, shall stand cancelled.
Sd/- **ANNIE JOHN, JUDGE**
RKM
