SANTHA W/O MANIYAN v. THE EXCISE INSPECTOR KARUNAGAPPALLY EXCISE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **CRL.A.No.1322 OF 2008** **JUDGMENT IN SC 502/2005 DATED 24-05-2008 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), COURT-I,KOLLAM IN SESSIONS CASE NO.502/2005** **CP 6/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA** ## **APPELLANT/ACCUSED:** **SANTHA W/O MANIYAN,PALAKKAL LAKSHAM VEEDU COLONY NO.222,, PALAKKAL CHERRY, THEVALAKKARA,KOLLAM** ## **BY ADV. SRI.S.SANTHOSH KUMAR** ## **RESPONDENT/COMPLAINANT:** **THE EXCISE INSPECTOR KARUNAGAPPALLY EXCISE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** ## **OTHER PRESENT:** **PUBLIC PROSECUTOR SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-07-2019, THE COURT ON 16-08-2019 PASSED THE FOLLOWING:** Crl.A.No.1322/2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1322 of 2008 ---------------------------------------------Dated this the 16[th] day of August, 2019 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.502/2005 on the file of the Court of Session, Kollam. The appeal is filed assailing the conviction entered and sentence passed against her under Section 8(1) read with 8(2) of the Abkari Act, 1077. 2. The prosecution case is that on 28.12.1999, at about 18.30 hours, the appellant was found at a public road in Thevalakkara Village, having in her possession 10 plastic packets, each packet containing 150 ml. of arrack. PW1, who was the Preventive Officer of Karunagappally Excise Range, seized the packets containing arrack as per Ext.P1 mahazar. He did not arrest the appellant at the spot because he could not then get the assistance of any woman police constable and as the time of the occurrence was after sunset. Crl.A.No.1322/2008 3 3. The appellant pleaded not guilty to the charge framed by the trial court under Sections 55(a) and 8(1) read with 8(2) of the Abkari Act. Thereupon, the prosecution examined PW1 to PW6 and marked Exts.P1 to P5 and MO1. No evidence was adduced by the appellant. 4. The trial court found the appellant guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted her thereunder and sentenced her to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records. 6. PW3 and PW4 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They even denied the signature in Ext.P1 mahazar. 7. PW1 is the Preventive Officer who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW2 was the excise guard who Crl.A.No.1322/2008 4 was in the excise party led by PW1. His evidence, more or less, corroborates the testimony of PW2 on the material particulars of the occurrence. 8.There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of 10 plastic packets which contained liquid from the possession of the appellant. There is nothing to show that PW1 had falsely implicated the appellant in a case of this nature. PW1 and PW2 identified the appellant who was present in the court as the person who was carrying the plastic packets. The explanation offered for not arresting the appellant from the spot is satisfactory and convincing. In such circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of 10 plastic packets which contained liquid from the possession of the appellant. 9. However, seizure of plastic packets containing some liquid from the possession of the appellant does not prove the offence under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act against her. Conviction of the appellant in the Crl.A.No.1322/2008 5 case is possible only on proof that the liquid contained in the plastic packets was arrack or some other liquor. 10. Ext.P5 is the certificate of chemical analysis conducted in respect of the sample of liquid which was sent for analysis. Ext.P5 certificate shows that the sample of liquid contained ethyl alcohol. 11. Learned counsel for the appellant contended that there is doubt as to whether the very same sample of the liquid which was taken by PW1 at the spot was produced before the court and sent for chemical analysis and therefore, there is no assurance that Ext.P5 certificate relates to the liquid seized from the possession of the appellant. Learned counsel also contended that there was delay in the production of the sample and the remaining plastic packets containing liquid in the court. 12. _Per contra_ , learned Public Prosecutor contended that there is nothing to suspect that the sample was tampered with by any person and therefore, there can be no doubt with regard to the fact that Ext.P5 certificate of chemical analysis relates to the liquid contained in the packets seized from the possession of Crl.A.No.1322/2008 6 the appellant. 13. PW5 Excise Range Officer has deposed that he received the properties and the records which were produced by PW1 and he prepared Ext.P2 occurrence report. He has also stated that he produced the properties in the court on 29.12.1999. Ext.P3 property list is dated 29.12.1999. But, the endorsement made by the Magistrate on Ext.P3 list reveals that the properties, including the sample, were produced in the court only on 01.01.2000. But, PW5 would stick on to his stand that he produced the properties in the court on 29.12.1999. In the light of the endorsement of the Magistrate on Ext.P3 list, it cannot be believed that the properties were produced before the court on 29.12.1999. They were produced in the court only on 01.01.2000. There was a delay of three days in producing the properties, including the sample, in the court. The delay is not explained by PW5. There is also no evidence as to who was in custody of the properties, including the sample, till they were produced in the court on 01.01.2000. Crl.A.No.1322/2008 7 14. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , had dealt with the question of delay in producing the material objects before the court in cases registered under the Abkari Act. The Division Bench held that it is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate forthwith either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari manual. It was held that what is required by the statute is only that the seizure of the property should be reported forthwith to the court, but the production of the property before court (whenever it is practicable) should also take place without unnecessary delay. It was further held that there should be explanation for the delay when there is delayed production of the property. 15. In the instant case, there was a delay of three days in producing the properties, including the sample, in the court. The delay is not explained. Moreover, as noticed earlier, there is no evidence as to who was in custody of the properties, including the sample, till they were produced in the court on 01.01.2000. Crl.A.No.1322/2008 8 16. There is another lacuna in the prosecution case. PW1 has given evidence that the bottle, in which the sample of liquid was taken, was sealed by him at the spot of the occurrence. Ext.P3 property list also shows that the sample bottle had seal on it. However, the description of the sample bottle given in Ext.P5 forwarding note prepared by PW5 for sending the sample for chemical analysis, does not show that there was any seal on it. A specific space is provided in the forwarding note for affixing the sample seal. No such sample seal is seen affixed on Ext.P5, which is the copy of the forwarding note. Normally, if the sample seal does not appear in the copy of the forwarding note, it has to be presumed that such sample seal was not affixed on the original forwarding note, unless proved otherwise. A copy of the forwarding note is kept in the office of the Court for serving certain purposes. The purposes are evident from the contents of the form of the forwarding note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken Crl.A.No.1322/2008 9 from the bulk of the contraband. Therefore, the absence of sample seal in the space provided in the copy of the forwarding note is a sufficient reason for presuming that the sample seal was not provided in the original forwarding note (See **Krishnan v. State : 2015 (1) KHC 822).** It creates doubt as to whether the sample sent for analysis was the very same sample taken from the liquid contained in the plastic packets which were seized from the possession of the appellant. 17. Proof of mere seizure of liquid from the possession of a person is not sufficient to establish that he/she had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved Crl.A.No.1322/2008 10 that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid allegedly seized from the possession of the accused. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner. 18. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)]. Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. State of Kerala : AIR 1994 SC 117). 19. The principles mentioned earlier get support also from the very recent decision of the Supreme Court in **Vijay Pandey v. State of Uttar Pradesh** (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019) wherein it has been held as follows: _“The failure of the prosecution in the present_ Crl.A.No.1322/2008 11 _case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be - co related”._ (emphasis supplied). 20. In the instant case, the unexplained delay in producing the sample before the court coupled with the defects in the forwarding note, which were noticed earlier, creates doubt as to whether the very same sample of liquid taken at the spot of the occurrence by PW1 was forwarded for chemical analysis. The benefit of this doubt should go to the accused. 21. The upshot of the discussion above is that the conviction entered and sentence passed against the appellant under Section 8(1) read with 8(2) of the Abkari Act cannot be sustained. The appellant is entitled to be acquitted. 22. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set Crl.A.No.1322/2008 12 aside. The appellant is found not guilty of the aforesaid offence and she is acquitted. Bail bond, if any, executed by the appellant stands cancelled and she is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to her. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/09/08/2019 True Copy PS to Judge