Satheesan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937 CRL.A.No.2269 of 2006 (D) ------------------------------AGAINST THE JUDGMENT IN SC 119/2002 of ADDL. SESSIONS COURT (ADHOC) III, TRIVANDRUM DATED 03-10-2006 CP 65/2001 of J.M.F.C.-II, ATTINGAL ----- APPELLANT/ACCUSED:: -------------------------- SATHEESAN, S/O KOCHAPPI, SREEPADAM COLONY, VALLYAVEETTU MURI PALLIPPURAM VILLAGE. BY ADVS. SRI.M.R.RAJESH SMT.A.K.PREETHA RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. PUBLIC PROSECUTOR SRI.ABHIJITH LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.2269 of 2006 -----------------------------------------------Dated this the 21[st] day of January, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for six months and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for three months. Challenging the conviction and sentence so 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 respondent. 3. The prosecution case is briefly stated as follows: PW3, the Excise Inspector, Excise Range Office, Kazhakkoottam, and his party were on patrol at Karichara in Pallippuram village at about 5.00 p.m. on 31-03-1999. While Crl. Appeal No.2269 of 2006 -2- so, the appellant was seen coming from the opposite side carrying M.O.1 two and a half litre black jerrycan. Seeing the excise party, the appellant attempted to flee away. But, the excise party soon reached him and examined the jerrycan carried by him when it was revealed that it contained about one litre of arrack. Therefore, the appellant was arrested by PW3 preparing Ext.P4 Arrest Memo in the presence of witnesses. Ext.P5 is the Arrest Notice. PW3 sealed and labelled M.O.1 jerrycan containing arrack and seized the same under Ext.P3 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 and his party reached the Excise Range Office, Kazhakkoottam, with the appellant, property and the records. PW3 registered Crime No.17 of 1999 of that Excise Range Office in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus drawn by PW3. He has produced the appellant, property and the records before the Judicial First Class Magistrate's Court-II, Attingal. Ext.P7 is the List of Property. Ext.P8 is a copy of the Forwarding Note submitted before the court for subjecting the sample of Crl. Appeal No.2269 of 2006 -3- the contraband to chemical analysis. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. PW5, the Excise Inspector, Excise Range Office, Kazhakkoottam, 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 of Session, Thiruvananthapuram, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-III, Thiruvananthapuram. 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 5 and marked Exts.P1 to P9 and M.O.1 on their side. Ext.D1 was marked on the side of defence through PW5. The appellant was examined under Section 313 of Cr.P.C. He has denied all Crl. Appeal No.2269 of 2006 -4- the incriminating circumstances shown against him. The defence has not adduced any evidence except marking Ext.D1 as aforesaid. 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 thereunder. 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. It is the prosecution case that the appellant was found in possession of about one litre of arrack in a jerrycan at about 5.00 p.m. on 31-03-1999 and PW3 seized that arrack under Ext.P3 Seizure Mahazar in the presence of witnesses. PWs.1 and 2 were cited by the prosecution as the independent witnesses for proving the seizure of contraband and the occurrence alleged by the prosecution. Both of them did not support the prosecution version of occurrence. They were declared hostile to the prosecution. PW3, the Detecting Officer, and PW4, the Excise Preventive Officer who claimed Crl. Appeal No.2269 of 2006 -5- to have accompanied PW3 at the time of detecting the offence, deposed before the court, by and large, in support of the prosecution case. Whether their evidence can be relied on for finding the appellant guilty of a serious offence under Section 8(1) and (2) of the Abkari Act is the question to be considered and answered. 6. The prosecution case is that about one litre of arrack contained in M.O.1 jerrycan was seized from the appellant by PW3 at about 5.00 p.m. on 31-03-1999. It is also their case that the contraband was produced before the court on the next day, i.e., on 01-04-1999. Whether the contraband was under safe custody after it was allegedly seized on 31-03-1999 and before it was produced before the court on 01-04-1999? Under whose custody it was kept during that period? Was it under safe custody? No answers are forthcoming with regard to these questions from the prosecution. The official witnesses PWs.3 to 5 did not say anything about these aspects. The matter does not end there. Ext.P7 is the List of Property with which the property Crl. Appeal No.2269 of 2006 -6- was produced before the court on 01-04-1999. On that day, the learned Magistrate directed to produce the same on the next working day. Thereafter, as could be seen from Ext.P7 itself that the contraband was produced before the court on 06-04-1999. Similar questions arise here also. Under whose custody it was kept during the period between 01-04-1999 and 06-04-1999? Was it under safe custody? No answers are forthcoming from the prosecution. In **Narayani v. Excise** **Inspector (2002 (3) KLT 725)** , a learned singe 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 13-09-1998 (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 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 appears from the records that no sample of the Crl. Appeal No.2269 of 2006 -7- contraband was taken by PW3 at the time of detection of the offence. PW3 does not have a case in Ext.P3 Seizure Mahazar that he has taken sample of the contraband from the place of occurrence. None of the official witnesses examined before the court deposed that the investigating agency has taken sample of the contraband and produced the same before the court. Ext.P8 is a copy of the Forwarding Note. A reading of Ext.P8 may give an impression that the investigating agency has drawn 150 ml. of arrack as sample in a bottle for the purpose of subjecting it to chemical analysis. Neither the evidence of official witnesses examined by the prosecution nor Ext.P7 List of Property shows that a sample of that nature was produced before the court. The submission made by the office of the court on 06-04-1999 on Ext.P7 to the effect that the contraband may be returned to the Excise Officer after taking sample for chemical examination clearly indicates that the investigating agency has not produced a sample for chemical examination before the court. Therefore, it has to Crl. Appeal No.2269 of 2006 -8- be found that the sample sent for chemical analysis was drawn from the court only. If that be so, whether the sample drawn and sent for chemical analysis was really the sample of the contraband allegedly seized from the appellant? The clerk who was dealing with the properties in the court was not examined in this case. He was a competent witness to say as to whether the sample drawn and sent for chemical analysis was really the sample of the contraband allegedly seized from the appellant. In view of the facts that the Detecting Officer or the investigating agency did not draw and send a sealed sample of the contraband for chemical analysis with a Forwarding Note containing the sample seal of the seal affixed on the sample bottle and the nonexamination of the property clerk of the court, there is no assurance that the sample analysed at the Chemical Examiner's Laboratory was really the sample of the contraband allegedly seized from the appellant. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows: Crl. Appeal No.2269 of 2006 -9- - “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** has held that the prosecution 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 in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that Crl. Appeal No.2269 of 2006 -10- 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. It is reported in Ext.P9 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. But, for the aforesaid reasons, Ext.P9 is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. It is the case of the prosecution that the occurrence has taken place at Karichara in Pallippuram village. The defence has a specific case that no such occurrence has taken place at that place as alleged by the prosecution. If the occurrence has taken place there as claimed by the prosecution, what prevented them from preparing a Scene Mahazar in the presence of witnesses showing the place of occurrence. The prosecution has not offered any explanation for not preparing a Scene Mahazar in this case. 9. Another aspect also has to be considered here. The alleged occurrence has taken place on 31-03-1999. Ext.P9 Certificate of Chemical Analysis dated 17-06-1999 was Crl. Appeal No.2269 of 2006 -11- received by the court on 25-09-1999. Therefore, the investigating agency should have submitted the Final Report before the court immediately after the receipt of Ext.P9 by the court. But, as could be seen from the deposition of PW5, the Investigating Officer, the investigation of the case has taken place only in 2001 and after completing the investigation, the Final Report was submitted before the court only on 09-07-2001. The inordinate delay thus occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 10. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal of the offence alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The Crl. Appeal No.2269 of 2006 -12- 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** kns/- //TRUE COPY// P.A. TO JUDGE