Satheesh Babu and Satheesh Bahavan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 4TH DAY OF APRIL 2016/15TH CHAITHRA, 1938 CRL.A.No. 145 of 2008 (C) -----------------------------AGAINST THE JUDGMENT IN SC 576/2002 of ADDL. SESSIONS COURT FOR ABKARI ACT CASES, KOTTARAKKARA DATED 18-01-2008 ------- APPELLANT/ACCUSED NO.1: -------------------------------- SATHEESH BABU,S/O.GOPALAKRISHNAN SATHEESH BAHAVAN, KOLANNOOR MURI, EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM DISTRICT. BY ADVS. SRI.M.G.KARTHIKEYAN SRI.NIREESH MATHEW RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, KOTTARAKKARA, KOLLAM DISTRICT BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-04-2016, A/W CRL.APPEAL NO.218/08, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal Nos.145 & 218 of 2008 -----------------------------------------------Dated this the 4[th] day of April, 2016 ## **JUDGMENT** 1. kThe appellant in Crl. Appeal No.145 of 2008 was the first accused and the appellant in Crl. Appeal No.218 of 2008 was the second accused in Crime No.587 of 1997 of Kottarakkara Police Station. The case against them was committed to the Court of Session, Kollam, by two separate orders passed by the Judicial First Class Magistrate's Court-I, Kottarakkara. The Sessions Court, initially, made over the cases against the appellants to the Assistant Sessions Court, Kottarakkara. Subsequently, they were transferred to the Additional Sessions Court (Abkari Act cases), Kottarakkara. The court below clubbed together these cases and conducted the trial. Both the appellants were found guilty of the offences under Section 55(a) and (i) of the Abkari Act and convicted them thereunder. They were sentenced to undergo rigorous imprisonment for seven years each and to Crl. Appeal Nos.145 & 218 of 2008 -2- pay a fine of 1 lakh each and, in default of payment of fine,₹ to undergo rigorous imprisonment for one year each. The sentences were directed to run concurrently. Challenging the conviction and sentence passed by the court below, the appellants have preferred these appeals. Since both these appeals arise out of the same crime and out of the same judgment passed by the court below, they were heard together and are being disposed of by this common judgment. 2. Heard the learned counsel appearing for the appellants and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Kottarakkara Police Station, and his party were on patrol at about 11.45 a.m. on 18-07-1997. While so, they got reliable information that arrack was stored and being sold in a house on the western side of Iruvellikkal Anjithra Ela. Therefore, PW5 and his party reached that place when PW5 received information from the Crl. Appeal Nos.145 & 218 of 2008 -3- first accused that spirit was stored in that house. Therefore, after preparing and sending Ext.P2 Search Memorandum to the court, PW5 and his party searched that house in the presence of witnesses. During search, 32 jerrycans of 35 litre size containing liquid were seen remaining in the northwestern room of that building. On opening and examining the contents of those jerrycans, it was revealed that all those jerrycans contained rectified spirit used for making arrack. Since PW5 was convinced that both the accused stored and kept that rectified spirit for converting as arrack for sale, PW5 arrested the first accused then and there preparing Ext.P3 Arrest Memo. Each of the 32 jerrycans contained about 32 litres of spirit. Those jerrycans were seized by PW5 under Ext.P1 Seizure Mahazar in the presence of witnesses and were numbered them 1 to 32. PW5 had drawn 180 ml. of spirit from each of the 32 jerrycans as samples and those sample bottles were also numbered 1 to 32 respectively. The sample bottles as well as the jerrycans containing spirit were sealed. Thereafter, PW5 and his party Crl. Appeal Nos.145 & 218 of 2008 -4- returned to Kottarakkara Police Station with the first accused, contraband including samples and the records. PW5 registered Crime No.587 of 1997 of that Police Station in respect of the occurrence. Ext.P4 is the F.I.R. thus drawn by PW5. He had produced the first accused, contraband including samples and the records before the Judicial First Class Magistrate's Court-I, Kottarakkara. Ext.P5 is the List of Property. He had conducted investigation of the case. He had questioned the witnesses and recorded their statements. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. Ext.P7 is a report in respect of the second accused. Ext.P8 is a copy of the Rent Chit. Ext.P9 is a copy of the Building Tax Receipt. Ext.P10 is a copy of the Basic Tax Receipt. Ext.P11 is a 'Kychit'. The investigation was continued by PW6, the Sub Inspector of Police, Kottarakkara Police Station. He had completed the investigation and submitted the Final Report before the court. The court below framed charges separately against Crl. Appeal Nos.145 & 218 of 2008 -5- the first and second accused alleging the offences under Sections 55(a) and (i) and 58 of the Abkari Act. Both the accused pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P11 on their side. Both the accused were examined under Section 313 of Cr.P.C. They denied the incriminating circumstances shown against them. The defence examined DW1. The court below, after considering the matter, found both the accused guilty of the offences under Section 55(a) and (i) of the Abkari Act and convicted them thereunder. They were heard on the question of sentence and imposed the sentences on them. 4. The appellants have raised various contentions challenging the convictions and sentences passed against them. It is the case of the prosecution that 1024 litres of spirit was found stored in a house by both the accused at about 11.45 p.m. on 18-07-1997 and the first accused was arrested then and there by PW5 and the contraband was seized under Ext.P1 Seizure Mahazar. Thereafter, PW5 and his party reached Kottarakkara Police Station with the first Crl. Appeal Nos.145 & 218 of 2008 -6- accused, contraband including samples and the records. The first accused, contraband including samples and the records were produced before the court by PW5. Ext.P1 Seizure Mahazar, Ext.P3 Arrest Memo and Ext.P4 F.I.R. are seen produced before the court by PW5 on 19-07-1997. But, as could be seen from Ext.P5 List of Property, the contraband (not all) was produced before the court by PW5 only on 25-07-1997. 32 jerrycans containing spirit are described against item-1 in Ext.P5 and 32 sample bottles are described against item-2. It can also be seen from this document that the office of the court made a submission before the learned Magistrate on 25-07-1997 itself to the following effect: Item1 viz. 32 jerrycans containing spirit, was not produced before the court. Hence, prayed for returning the samples for want of production of item-1. Above that submission, the office of the court also endorsed 'verified'. Learned Magistrate, on producing the properties, directed the office to verify and receive the properties. Another order made by the learned Magistrate on 14-08-1997 can also be seen in Ext.P5. It was Crl. Appeal Nos.145 & 218 of 2008 -7- for verifying and receiving the properties. Thereafter, the office of the court again made a submission on 20-08-1997 to the following effect: 32 jerrycans were produced and that fact was entered in the register. For want of space for keeping the properties in the property room, prayed for returning the properties so produced to the Sub Inspector of Police, Kottarakkara, for his safe custody until further orders. Learned Magistrate, on 21-08-1997, directed the Sub Inspector of Police, Kottarakkara, to keep item-1 material objects in his safe custody until further orders. These facts are quite evident from Ext.P5. Thereafter, as could be seen from the note entered by the court below during the course of the examination of PW5, those material objects so returned to the Sub Inspector of Police were not produced before the court. But, a report has been filed saying that they were broken and the contents were lost by efflux of time and hence the material objects were not produced. 5. The version of PW5, while he was in the witness box, with regard to the production of properties before the court Crl. Appeal Nos.145 & 218 of 2008 -8- is something different. During chief examination, he stated that the court received the material objects only on 25-07-1997 and till then they were kept under his safe custody. Again the material objects were directed to be kept under his custody as per orders made in Ext.P5. During cross examination, PW5 deposed that the material objects were kept in the Police Station for want of time to verify them. He denied the suggestion that when the samples were produced before the court, the jerrycans containing arrack were not produced. Subsequently, he stated that the material objects were not produced before the court on 18-07-1997 due to the delay in verifying them in the court and hence they were kept in the Police Station. Soon he further stated that the material objects were produced before the court on 18-07-1997 itself. He did not know the policeman who had taken the material objects to the court. He also admitted that there was no record showing the production of properties and their return to the Police Station. PW5 also stated that the properties returned on 21-08-1997 were kept Crl. Appeal Nos.145 & 218 of 2008 -9- under his safe custody in the Police Station. These statements and claims made by PW5 do not receive any support from the official endorsements made from the court in Ext.P5. The statement of PW5 that he had, in fact, produced the properties i.e. the contraband in 32 jerrycans and 32 sample bottles, cannot be accepted in the light of the endorsements appearing in Ext.P5. If 32 jerrycans containing spirit were returned from the court on 18-07-1997 as claimed by PW5, that fact would have been endorsed in Ext.P5 as endorsed from the court on 25-07-1997. The specific submission of the office of the court noted in Ext.P5 on 25-07-1997 would go to show that even on 25-07-1997 those 32 jerrycans were not produced before the court and therefore prayed for returning the samples produced. The claim made by PW5 cannot be believed for another cogent reason as well. PW5 had produced Ext.P1 Seizure Mahazar, Ext.P3 Arrest Memo and Ext.P4 F.I.R. only on 19-07-1997 as could be seen from the endorsement made on them from the court. Therefore, in all probability, there was no occasion Crl. Appeal Nos.145 & 218 of 2008 -10- for PW5 to produce the jerrycans containing spirit and the samples of spirit on 18-07-1997 without even producing the Seizure Mahazar by which they were allegedly seized by PW5. When all these facts are considered, this Court is left with the irresistible conclusion that the spirit contained in 32 jerrycans were not produced without undue delay before the court. The reason for the delay that occurred in producing the properties before the court has not been properly explained also by PW5. 6. The production of the contraband items along with the List of Property before the court is an urgent duty. Such a duty has to be performed without delay. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned single Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reason stated therein, that an unexplained delay of a single day is Crl. Appeal Nos.145 & 218 of 2008 -11- fatal to the prosecution case. As already found, there is no valid explanation at all for the delayed production of the contraband before the court in this case. The explanation contemplated in the ruling in **Ravi v. State of Kerala** (supra) is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW5 is not proper and satisfactory. Therefore, the unexplained inordinate delay that occurred in producing the properties before the court is fatal to the prosecution and on that ground alone, the appellant is entitled to an order of acquittal. 7. The prosecution cited and examined PWs.1 and 2 as occurrence witnesses for proving the prosecution version of occurrence. But, they have not supported the prosecution version of occurrence. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their version of occurrence. PW5 is the Detecting Officer and the Investigating Officer. He, by and large, Crl. Appeal Nos.145 & 218 of 2008 -12- supported the prosecution version of occurrence. PW3, the Head Constable attached to Kottarakkara Police Station claimed to have accompanied PW5 at the time of detecting the offence, also supported the prosecution case. But, he could not identify the first accused. 8. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that all the 32 samples were found to be rectified spirit and ethyl alcohol was detected in them. It is also certified in Ext.P6 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was provided? None of the excise officials examined in this case had a case that a sample seal of the seals affixed on the samples was provided for comparison by the Chemical Examiner. No Forwarding Note or a copy of the Forwarding Note is seen among the records of the case. The prosecution did not show by adducing cogent evidence that the sample of the seals affixed on the sample bottles was provided along with the samples sent to Crl. Appeal Nos.145 & 218 of 2008 -13- the Chemical Examiner. In these circumstances, there is no assurance that the samples subjected to Chemical Analysis were really the samples of the contraband allegedly seized from the appellants. Such an assurance is possible only when the sample seal of the seals affixed on the sample bottles was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Moreover, the clerk who was dealing with the properties in the court was not examined for proving the fact as to whether specimen seal of the seals affixed on the sample bottles was provided for comparison to the Chemical Examiner. In view of these facts, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellants in this case. 9. This Court in **Rajamma v. State of Kerala (2014 (1) KLT 506)** has held as follows: - “..........The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is Crl. Appeal Nos.145 & 218 of 2008 -14- 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.” The Division Bench of this Court in **Ravi v. State of Kerala** (supra) 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 the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor Crl. Appeal Nos.145 & 218 of 2008 -15- allegedly found in the possession of the accused. I have already dealt with in detail the delay in the production of the contraband including the samples before the court. When all these facts are considered, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 10. For the foregoing facts and circumstances, it is unsafe to convict the appellants for the serious offences under Section 55(a) and (i) of the Abkari Act. They are, at least, entitled to the benefit of doubt. Therefore, the convictions and sentences passed against the appellants are liable to be set aside. They are entitled to an order of acquittal of the offences alleged against them. 11. In the result, the convictions and sentences passed by the court below against the appellants are set aside. They are acquitted of the offences under Section 55(a) and (i) of the Abkari Act. They are set at liberty. The bail bonds executed by them shall stand cancelled. The amounts, if any, deposited by the appellants as directed by this Court Crl. Appeal Nos.145 & 218 of 2008 -16- shall be returned to them. These appeals are allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE