Ravi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 8TH DAY OF FEBRUARY 2016/19TH MAGHA, 1937** ## **CRL.A.No. 1623 of 2004 (A)** **---------------------------** **AGAINST THE JUDGMENT IN SC.55/2002 of ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT -I), TRIVANDRUM DATED 04-08-2004** **APPELLANT(S)/ACCUSED:** **------------------------** **RAVI, S/O. PONNAYYAN NADAR, T.C.34/1481, PUTHUVAL PUTHEN VEEDU KANNANTHURA SHANMUGHAM WARD, KADAKAMPALLY VILLAGE THIRUVANANTHAPURAM.** **BY ADVS.SRI.GOPAKUMAR R.THALIYAL SRI.S.VENUGOPAL SRI.EBY GEORGE** ## **RESPONDENT(S)/COMPLAINANT STATE:** **--------------------------------** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** **R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1623 of 2004 ---------------------------------------------Dated this the 8[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence u/s.55(a) of the Abkari Act in S.C.No.55/2002 of Additional Sessions Judge (Fast Track Court- I), Thiruvananthapuram. The appellant was charge sheeted u/s.55(a) of the Abkari Act on allegation that on 4.6.2000 at 10.30 a.m., he was found in possession of four litres of arrack in black Can and a glass near the house bearing No.TC 34/481 from the road leading to Kannanthura beginning from Sangumugham - All Saints road. The Sub Inspector of Police, Valiyathura arrested the appellant and registered a case. After completing investigation, he laid charge before Judicial First Class Magistrate Court-II, Thiruvananthapuram, from there the case Crl.Appeal No.1623/2004 2 was committed to Sessions Court. 2. During trial prosecution examined PW1 to PW3 and marked Exts.P1 to P3. MO1 to MO3 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused, while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused u/s.55(a) of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of 1 lakh, in default of payment of fine,₹ rigorous imprisonment for six months. Being aggrieved by that, he preferred this appeal. 3. The learned counsel appearing for the appellant contended that there are no independent witnesses to prove the alleged seizure, no sample was taken from the seized article and no seal was put at the time of seizure. There is delay of three days in producing the seized article before Court. Therefore, when neighbours or independent witnesses Crl.Appeal No.1623/2004 3 were not cited as witnesses, there is violation of benevolent provisions of the Abkari Act, hence, the appellant is entitled to get the benefit of doubt. 4. The learned Public Prosecutor admitted that there was no independent witnesses to prove the alleged seizure and no explanation had been given for the delay in producing the seized article before Court. ## 5. This Court in **Rajamma** v. **State of Kerala** [2014(1) KLT 506] held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.” On a perusal of the above dictum, it is clear that mere arrest of the accused itself is not a sufficient ground to establish Crl.Appeal No.1623/2004 4 that the appellant has committed the aforesaid offence. In this context, it is pertinent to note, what is the evidence against the appellant in this case. 6. The seizure of arrack was deposed by PW3. The evidence of PW3 shows that while he was the Sub Inspector of Police, Valiyathura, on 4.6.2000 at about 10 a.m., he got an information that the appellant was selling arrack, therefore he reached at the place of occurrence. At that time, the appellant tried to ran away and PW3 intercepted him and inspected the Kannas in which he detected arrack. He prepared Ext.P1 mahazar and arrack was taken into custody. Subsequently, he registered a case. Ext.P2 is the FIR. The contraband articles were produced before Court. Ext.P3 is the chemical analysis report, in which detected 24.62% volume of ethyl alcohol. He identified MO1 kannas and MO2 glass and MO3 currency note. Even though PW3 deposed so, he has not stated the place of sale of arrack. PW2 supported the Crl.Appeal No.1623/2004 5 evidence of PW3. He also accompanied at the place of occurrence with PW1. PW2 also stated that he did not see the sale of arrack by the appellant. PW1 also gave similar version given by PW3. Analysing the oral evidence of PW1 to PW3, it is clear that they have not produced any evidence to prove the alleged offence. 7. It is the primary responsibility of the detecting officer to take sample from the seized article and affix his seal on the sample so taken. Here, PW3 has not stated that he has followed the procedural formalities provided under the Excise Manual at the time of seizure of the contraband articles. It is the primary responsibility of PW3 to affix his seal on the articles and take sample from the article and he has to prepare seizure mahazar, immediately after the seizure of the liquor from the appellant. Here, no such procedural formalities were complied. There is no forwarding note prepared by the detecting officer with requisition for Crl.Appeal No.1623/2004 6 sending the sample to the chemical examiner's lab. He submitted that he made a request to the Magistrate Court, but the copy of the request was not furnished before Court to ensure that he has complied with the statutory formalities. 8. This Court in **Ravi** v. **State of Kerala** [2011 (3) KLT 353] held as follows: “It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can 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. (Vide - State of Rajasthan v. Daulath Ram(AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See - Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v.State of Kerala (2007 (1) KLT Crl.Appeal No.1623/2004 7 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant.” Therefore, it is the primary duty of the prosecution to show that the seal was properly affixed in the sample and in the other seized article, immediately after the seizure. When there is no evidence with regard to the affixture of seal, affixture of label and forwarding note for sending the sample to the chemical examiner's lab or requisition for sending the sample, it shows that there is violation of the Abkari Act. Therefore, in such a situation, the oral evidence of PW3 alone is not sufficient for a conviction. In the absence of convincing evidence, it is unsafe to rely the evidence of PW3 alone. Therefore, the trial Court failed to appreciate that position and convicted the appellant. In the result, the conviction and sentence passed by the Crl.Appeal No.1623/2004 8 trial Court u/s.55(a) of the Abkari Act are set aside. The appellant is acquitted and set at liberty. **P.D. RAJAN, JUDGE.** acd Crl.Appeal No.1623/2004 9