Sasidharan @ Kunjumon v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937 CRL.A.No. 850 of 2006 -------------------------- AGAINST THE JUDGMENT IN SC 586/2004 of ADDITIONAL SESSIONS COURT (ADHOC)-I, PATHANAMTHITTA DATED 13-03-2006 ( CP 16/2004 of THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT,THIRUVALLA ) ## APPELLANT/ACCUSED: -------------------- SASIDHARAN @ KUNJUMON, S/O.KRISHNAN, PUTHUPARAMBIL VEEDU, KATTOOR KARA, KATTOOR VILLAGE, THIRUVALLA. BY ADVS. SRI.S.HARIKRISHNAN SRI.C.UNNIKRISHNAN (KOLLAM) ## RESPONDENT/COMPLAINANT: -------------------------- 1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, THIRUVALLA. BY PUBLIC PROSECUTOR MRS. LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-012016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl.A. No. 850 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 29[th] day of January, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for two years. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. 3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer, Excise Enforcement and CRA 850/2006 2 Anti-Narcotic Special Squad, Pathanamthitta, and his party were on patrol at about 5.45 p.m. on 17.2.2001 at Thalayar Kizhakkeattamkara in Kuttoor Village. While so, the appellant was seen coming carrying MOs. I and II bottles in his hands. Entertaining a doubt, PW1 examined MO.I 1 ½ litre plastic bottle carried by the appellant in his right hand when full of arrack was found in it. MO.II 375 ml. glass bottle carried in his left hand was also examined by PW1 when full of arrack was found in that bottle as well. Since the appellant committed an offence under the Abkari Act, PW1 arrested him then and there preparing Ext.P2 Arrest Memo. The wife of the appellant was informed of the factum of arrest. MOs. I and II containing arrack were sealed by PW1 and seized them under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 and his party reached the Excise Range Office, Thiruvalla, with the appellant, contraband and the records and entrusted them with PW4, the Assistant Excise Inspector in charge of CRA 850/2006 3 Excise Inspector. PW4 registered Crime No. 8 of 2001 of that Excise Range Office in respect of the occurrence. Ext.P4 is the Crime and Occurrence Report thus prepared by PW4. He has produced the appellant before the Judicial First Class Magistrate's Court, Thiruvalla, with Ext.P5 Remand Report. He has also produced the properties before the court along with Ext.P6 List of Property. Ext.P7 is a copy of the Forwarding Note submitted before the court by PW4 for the purpose of taking samples of the contraband and subjecting them to Chemical Analysis. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW6, the Excise Inspector, Thiruvalla, has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court CRA 850/2006 4 of Session, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P9 and MOs. I and II on their side. The appellant was examined under Section 313 of Cr.P.C. He has denied all the incriminating circumstances shown against him. He pleaded that he was innocent of the charge and was falsely implicated in this case. The defence has examined DWs. 1 to 3 on its side. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) of the Abkari Act and convicted him hereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. CRA 850/2006 5 It is the prosecution case that the appellant was found in possession of 1.875 litres of arrack in MOs. I and II bottles at about 5.45 p.m.on 17.2.2001 and he was then and there arrested by PW1 and the contraband items were sealed with his personal seal and seized them under Ext.P2 Mahazar in the presence of witnesses. It is also their case that the contraband items so seized were handed over to PW4 at the Excise Range Office, Thiruvalla, and, in turn, PW4 produced them before the court on the next day. It is also the prosecution case that the samples of contraband items were not collected by PW1 at the time of detecting the offence. But, they were sealed and produced before the court with a request for taking samples for subjecting them to chemical analysis. This is the case spoken to by PW4. At the time of examining the witnesses in this case, those bottles were not seen as sealed or labelled as claimed by the prosecuting agency. It is their explanation that the bottles would have been opened for the purpose of collecting samples. Two CRA 850/2006 6 questions naturally arise here. (1) Whether the contraband items so produced along with Ext.P6 List of Property on the next day were under safe custody during the period between the receipt of those items by PW4 and till the time they reached the court? (2) Under whose custody, they were kept during that period? There is absolutely no answer for these questions in the evidence tendered by the official witnesses in this case. 6. In **Narayani v. Excise Inspector(2002(3)KLT 725),** a learned single Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of CRA 850/2006 7 PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. 7. It is reported in Ext.P8 Certificate of Chemical Analysis that ethyl alcohol was detected in both the samples. Also reported that the samples contained 31.03% and 31.42% by volume of ethyl alcohol. Whether the samples so sent for chemical analysis were really the samples of the contraband items allegedly seized from the appellant? Admittedly, the Detecting Officer or any other officer has taken samples of the contraband items allegedly seized from the appellant. The prosecution case is that the samples were taken from the contraband items from the court. If that be so, who has taken those samples? Whether the samples were taken from MOs. I and II bottles produced CRA 850/2006 8 before the court by PW4? These facts could have been proved by the prosecution by examining the clerk who was dealing with the properties in court at the relevant time. But, he was not examined in this case. In short, there is no evidence to show that the samples subjected to chemical analysis were really drawn from the bulk of the contraband items produced before the court. ## 8. This Court in **Sasidharan v. State of Kerala (2007** ## **(1) KLT 720)** has held as follows: “9.It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more and the other witness was not available. But the evidence of PWs 1 and 2 is quite credible to show that the accused was apprehended with a can allegedly containing contraband arrack. Notwithstanding the physical confirmation by PW1 of the contents in the can to be arrack by taste and smell the prosecution was not content with CRA 850/2006 9 that identification. That is why PW4 filed the forwarding note before the court for taking sample and despatching the same for chemical examination. Indeed, the law also insists on such a course of action (see AIR 1967 SC 1550 - _State of A.P. v. Madiga Boosenna & Ors._ and 1970 KLT 427 _Muthan Ankannithu v. State of Kerala_ ). But there is no evidence to show that sample was taken from the can produced in court and that it was the said sample which was tested by the Chemical Examiner. The property list shows that the can which was received in court on 10-021998, was directed to be returned to the Excise Inspector himself for safe custody after taking sample therefrom. The said endorsement on the reverse of the property list does not prove that a sample was drawn from the can which was produced in court. The thondy clerk, who was in charge of the M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending CRA 850/2006 10 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. There is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused. When the sample changed hands before reaching the Chemical Examiner the Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not been tampered with (see AIR 1980 SC 1314 _State of Rajasthan v. Daulat Ram_ and 1993 (2) KLT 550 SC - _Valsala v. State of Kerala_ ). The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. For this, there is no evidence.” In the case on hand, as already found, there is absolutely no CRA 850/2006 11 evidence to show that the samples sent for chemical analysis were drawn from the contraband items produced. This is fatal to the prosecution case. 9. The investigation of the case was conducted by PW6, the Excise Inspector. He has questioned the witnesses on 31.12.2003 and 3.1.2004. He has completed the investigation and submitted the Final Report before the court on 22.3.2004. The alleged occurrence in this case has taken place on 17.2.2001. Therefore, the investigating Agency has taken more than two years and 10 months for commencing and conducting the investigation and the Final Report was filed before the court only on 22.3.2004. What was the reason for such delayed investigation and delayed submission of the Final Report? No explanation has been offered for the same by the prosecution through any of the official witnesses examined in this case. 10. Section 50 of the Abkari Act deals with investigation and submission of report before the CRA 850/2006 12 ## Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1)Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-section (2) of section 173 of the Code of Criminal Procedure, 1973(Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as the investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Sub-section (2) of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the CRA 850/2006 13 statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. Ext.P8 Certificate of Chemical Analysis dated 5.5.2001 was received by the court on 14.6.2001. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P8. But, the Investigating Agency has taken more than two years and nine months for submitting the Final Report before the court after the receipt of Ext.P8 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 11. The right to a speedy trial is a constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. [See **Pankaj Kumar v. State of Maharashtra(AIR 2008 SC 3077)]** . In the case on hand, such a right to speedy trial has been infringed by CRA 850/2006 14 the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. 12. The case of the defence is one of total denial. It is the prosecution case that the occurrence has taken place at Thalayar Kizhakkeattamkara in Kuttoor Village. DW2 was the Panchayat Member of the Ward in which the alleged place of occurrence situates. He stated that there was no place called Thalayar Kizhakkeattamkara. This statement made by DW2 has not been disputed. This Court does not find any reason to disbelieve the statement so made by DW2. One more aspect also has to be considered along with this. The Investigating Agency has not prepared a Scene Mahazar showing the place of occurrence. In the facts and circumstances of the case, the non-preparation of a Scene Mahazar also assumes significance. 13. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be CRA 850/2006 15 set aside. The appellant is entitled to an order of acquittal of the offence alleged against him. 14. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The appellant is acquitted of the offence under Section 8(1)and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. ## **Sd/-** **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge