Sivadasan Nair @ Shaji v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A. WEDNESDAY, THE 2[ND] DAY OF MARCH 2022 / 11TH PHALGUNA, 1943 CRL.A NO. 1574 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 21.08.2007 IN SC 400/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA ``` ``` CP 47/2006 OF JUDICIAL FIRST CLASS MAGISTRATE COURT, ADOOR ``` ## **`APPELLANT/ACCUSED:`** ``` SIVADASAN NAIR @ SHAJI S/O.CHANDRASEKARAN, THANDISERRY VEEDU, VALLAMKULAM MURI, ERAVIPEROOR VILLAGE, THIRUVALLA. NOW RESIDING AT ANIL BHAVANAM, MALLIKKAMURI, THATTA, PANDALAM, THEKKEKARA VILLAGE. ``` ``` BY ADVS. ``` ``` SRI.M.T.SURESHKUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SRI. SUDHEER GOPALAKRISHANAN – PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.03.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1574 OF 2007 ``` ``` 2 ``` ## **`JUDGMENT`** The appellant is the accused in S.C. No.400/2006 of the Additional Sessions Court (Adhoc) Fast Track Court – II, Pathanamthitta. The aforesaid case arises from O.R. No.45/2004 of Adoor Excise Range. 2. The aforesaid case is registered against the petitioner on the allegation that, on 19.05.2004 at 12 o’clock noon, the accused was found holding a white plastic can with 5 litres of arrack on the road in front of Sreekrishna Vilasam U.P. School at Thattamallika Muri in Pandalam Thekkekara Village. He was apprehended by the Excise Party headed by the Excise Inspector, Adoor, along with the contraband article. From the said arrack, 300 ml was taken in a bottle having a capacity of 375 ml and sealed. O.R.45/2004 was registered against the appellant for the offences punishable under Section 8(1) and (2) of the Kerala Abkari Act. Based on the same, an investigation was conducted, and the final report was submitted before the Judicial First Class Magistrate Court, Adoor, where the same was taken into the file as C.P. No.47/2006. Upon completing the legal formalities, ``` CRL.A NO. 1574 OF 2007 ``` ``` 3 ``` the case was committed to Session Court, Pathanamthitta, and later, the same was made over to the court of Additional Sessions Judge (Adhoc) Fast Track II, Pathanamthitta, wherein it was tried as S.C. No.400/2006. 3. In support of the prosecution, PWs 1 to 5 were examined, Ext.P1 to P8 were marked, and the plastic can containing 4.700 litres of arrack was identified. After completion of prosecution evidence, the appellant was examined under Section 313 Cr.P.C., and the incriminating materials brought out during trial were put to him, which he denied. No defence evidence was adduced. After evaluating the materials produced by the prosecution, the Sessions Court concluded that the appellant is guilty of the offence under Section 8(1) and (2) of the Abkari Act and thereby sentenced the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh with default sentence for six months. This Criminal Appeal is filed challenging the aforesaid order of conviction and sentence. 4. Heard Sri. Sreelakshmi Sabu, learned counsel appearing ``` CRL.A NO. 1574 OF 2007 ``` ``` 4 ``` for the appellant and Sri. Sudheer Gopalakrishnan, learned Public Prosecutor, appearing for the State. 5. The specific contention put forward by the learned counsel for the appellant is that there is an enormous delay in completing the investigation and submitting the final report. It was also contended that the prosecution failed to establish that the sample subjected to chemical analysis was drawn from the article seized from the appellant’s possession. In support of the said contention, it is pointed out that the prosecution failed to mark the forwarding note evidencing forwarding of the aforesaid article for chemical analysis in a tamperproof condition. It is pointed out that instead of that, what is produced by the prosecution is a forwarding letter indicating the forwarding of the material objects to the Judicial First Class Magistrate Court. In such circumstances, learned counsel prays for interference in the order of conviction passed by the Sessions Court. Reliance was also placed on the decisions rendered by this Court in **Kumaran v. State of Kerala [2016 (4) KLT 718]** and **Majeedkutty v. Excise Inspector [2015 (1) KLT 624].** ``` CRL.A NO. 1574 OF 2007 ``` ``` 5 ``` 6. On the other hand, the learned Public Prosecutor would oppose the aforesaid contentions. It is pointed out that the evidence of official witnesses coupled with the contemporaneous documents such as Ext.P1 arrest memo, Ext.P2 intimation notice, Ext.P3 mahazar and the chemical analysis report as evidenced by Ext.P7 are sufficient to hold that the appellant is guilty of the offences. In such circumstances, he prays for the dismissal of the criminal appeal. 7. The crucial question that arises is whether the prosecution successfully established the guilt of the accused. The prosecution mainly relies upon the evidence of PWs 1 and 2, who were parties to the Excise team that detected the offence. According to them, on 19.05.2004 at 12 ‘o’clock noon, the accused was found with a white plastic can containing 5 litres of arrack on the road in front of Sreekrishna Vilasam U.P. School Thattmallika Muri in Pandalam Thekkekara Village. On examining the contents of the can, they could realise that the liquid found in the said can was arrack. Immediately, the article was seized, and out of the said liquid, 300 ml. of arrack was drawn in a bottle of 375 ml. capacity as sample and seals were affixed ``` CRL.A NO. 1574 OF 2007 ``` ``` 6 ``` thereon. Thereafter, the appellant was produced before the jurisdictional Magistrate, and the articles were also produced. Evidence of PWs 1 and 2 are consistent in this regard. PWs 3 and 4 are the independent witnesses who were the attestors of the Ext.P3 mahazar and the arrest memo. Even though they have admitted the signature, they turned hostile to the prosecution as they did not support the prosecution case. PW5 is the officer who conducted the investigation and submitted the final report. These are the materials based on which the prosecution seeks to prove the offences alleged against the appellant herein. 8. The first contention raised by the learned counsel for the appellant is that even though the incident occurred on 19.05.2004, the final report was submitted only in 2006. It is also pointed out that even the statements of witnesses were recorded after two years. It is pointed out that the statements of PWs 1 and 2 were taken on 12.01.2006. Similarly, statements of PWs 3 and 4 were taken only on 13.01.2006. By placing reliance upon the aforesaid fact, it was contended that there is an enormous delay in completing the ``` CRL.A NO. 1574 OF 2007 ``` ``` 7 ``` investigation, and hence the proceedings are vitiated. The learned counsel places reliance upon **Kumaran v. State of Kerala [2016 (4) KLT 718]** and **Majeedkutty v. Excise Inspector [2015 (1) KLT 624]** to substantiate the said contention. However, in **Santhosh. T.A. And another v. State of Kerala [2017 (5) KHC 107]** , it was held by this Court that, this Court that unless the delay in submitting the final report resulted in any prejudice to the accused, the same cannot be treated as fatal to the prosecution. The aforesaid judgment was rendered by this Court based on certain decisions of the Hon’ble Supreme Court in this regard. The principles laid down in **Santhosh T.A's** case was reiterated by this Court in **Varghese v. State of Kerala [2020(6) KHC 589]** . In such circumstances, unless there is any prejudice shown by the accused, the delay in completing the investigation cannot be treated as a ground for acquitting the accused. In this case, it is discernible that even though the appellant was arrested on 19.05.2004, he was released on bail on 17.06.2004. Apart from that, no specific prejudice is also brought to my notice in this regard. In such circumstances, I am of the view that contention put ``` CRL.A NO. 1574 OF 2007 ``` ``` 8 ``` forward by the learned counsel for the appellant in this regard is not sustainable. 9. Another contention raised by the learned counsel for the appellant is the lack of evidence indicating that the sample subjected to chemical analysis was drawn from the liquid seized from the appellant's possession. In **Bhaskaran K. v. State of Kerala and Another [2020 KHC 5296]** , and **Unnikrishnan Nair v. State of Kerala [2020 (3) KHC 455]** , it was held that, in the absence of forwarding note, it cannot be concluded that the sample which was drawn from the liquor seized from the possession of accused was made available for chemical analysis in a tamper-proof condition. In **Vijay Pandey v. State of Uttar Pradesh [2019 KHC 6727],** it was held that merely because the chemical analysis report supports the prosecution case, it cannot be concluded that the accused is guilty. To establish the accused’s guilt, the prosecution has to relate the sample collected from the appellant’s possession to the chemical analysis report. For the said purpose, every sequence of events right from the seizure of the article up to the submission of the same for the chemical ``` CRL.A NO. 1574 OF 2007 ``` ``` 9 ``` analysis are to be proved. A forwarding note is a crucial document to establish the said link as it would contain the sample seal, which was affixed on the sample while the same was drawn from the liquor allegedly seized from the accused. In the absence of marking of forwarding note, it may not be possible to ascertain as to whether, the sample subjected to analysis was the very same sample taken from the possession of the accused. The learned Public Prosecutor points out that in this case, in Ext.P3 mahazar, the seal affixed on the sample was specifically shown. However, that by itself is not sufficient. To complete the chain of events, both the seizure mahazar and the forwarding note should contain the impression of the specimen seal or description of the said seal with sufficient clarity. In this case only in Ext.P3 seizure mahazar, the seal is there. But in the absence of marking of forwarding note evidencing the forwarding of the sample for chemical analysis, no comparison of the aforesaid seal is possible. In such circumstances, the aforesaid lapses in prosecution are fatal, and the same is sufficient to hold that the prosecution failed to establish the accused's guilt. ``` CRL.A NO. 1574 OF 2007 ``` ``` 10 ``` 10. In the light of the above findings, the only conclusion that can be arrived at is that the appellant is not guilty of the offences alleged against him as he is entitled to the benefit of doubt due to the reasons mentioned above. In the result, this Criminal Appeal is allowed. The order of conviction passed by the Additional Sessions Judge (Adhoc) Fast Track II, Pathanamthitta in S.C. No.400/2006 as per judgment dated 21.08.2007 is hereby set aside. The appellant is found not guilty and acquitted of all the charges. His bail bond shall stand cancelled. ``` Sd/- ZIYAD RAHMAN A.A. JUDGE ``` SCS