Sivan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE P.D.RAJAN FRIDAY, THE 12TH DAY OF FEBRUARY 2016/23RD MAGHA, 1937 CRL.A.No. 2059 of 2004 (B) --------------------------- AGAINST THE JUDGMENT IN SC 385/2003 of III ADDITIONAL SESSIONS COURT (ADHOC), THRISSUR DATED 15-09-2004 APPELLANT/ACCUSED (ACCUSED IN CUSTODY):: ------------------------------------------- SRI SIVAN, S/O. MELAKKARAN PARAPPAN, VATTEKKAD, KODAKARA, THRISSUR DISTRICT. BY ADV. SRI.M.C.GOPI RESPONDENT(S)/COMPLAINANT:: ------------------------------ STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR IRINJALAKUDA RANGE (CR.NO.70 OF 1999) IRINJALAKUDA P.O., THRISSUR DISTRICT. BY PP SRI DHANESH MATHEW MANJOORAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.D.RAJAN, J ......................................... Crl.A.No.2059 of 2004 ....................................... Dated 12[th] February, 2016 ## JUDGMENT This appeal is preferred against the conviction and sentence in S.C.385 of 2003 of 3[rd] Additional Sessions Judge, Fast Track I, Thrissur under Section 55 (b) and (g) of the Abkari Act. The charge against the appellants is that on 8.9.1999 at 5.45 am, the appellants were found manufacturing illicit arrack in the government forest land near the house of one Joy at Kanakamala in kodakara village. They seized four litres of arrack and 120 litres of wash and 45 litres of coda for manufacturing arrack from the forest and arrested the accused. The contraband articles were seized after preparing a mahazar. Subsequently, they registered a crime and occurrence report. After completing investigation, Excise Inspector Excise Range, Irinjalakuda laid charge before Judicial First Class Magistrate, Irinjalakuda. From there, the case was committed to Sessions Court, Thrissur. Subsequently, it was made over to 3[rd] Additional Sessions Court. Cra 2059/2004 2 2. During trial, second accused died and the charge against him was abated. Prosecution examined four witnesses and marked Ext.P1 to P9 as documentary evidence. Material objects MO1 to MO14 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. Learned Additional Sessions Judge convicted the accused under Section 55(b) and (g) of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of Rs.1,00,000/- and in default, rigorous imprisonment for three months each. Being aggrieved by that, he preferred this appeal. 3. Learned counsel appearing for the appellant contended that Preventive Officer who detected the offence, violated the provisions of the Abkari Act. No labels were affixed in the contraband articles and in the sample packet. The signature of the accused and the excise officials were not affixed in the label. No forwarding note was prepared by the Investigating Officer Cra 2059/2004 3 when the contraband articles were produced before court and sent for chemical examination. Therefore Ext.P9 chemical analysis report itself is not sufficient for a conviction in this case. 4. The learned Public Prosecutor submitted that the Preventive Officer complied all statutory formalities which was considered by the trial court and no scope for interfering in the finding recorded by the trial court. 5. The occurrence was reported by PW1, the Preventive Officer, Excise Range office, Irinjalakuda. The evidence of PW1 shows that on 8.9.1999, he got information that the accused was manufacturing arrack in a forest land in Kodakara Village. Accordingly, he proceeded to the place of occurrence and seized the contraband articles and arrested the accused from the forest. In this context, mere arrest of the accused with material objects MO1 to MO14 is sufficient to establish the charge against the accused. This court in **Rajamma V. State of Kerala** (2014(1) KLT 506) explained the legal position as follows:- Cra 2059/2004 4 “Mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under S.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. 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 Cra 2059/2004 5 specimen impression of the seal, alleged to have been affixed in the sample by PW1 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”. In the light of the above observation made by the Single Judge of this court, I have examined the oral testimony of the Preventive Officer in this case. 6. The evidence of PW1 shows that on 8.9.1999, he arrived at the place of occurrence with witness, the accused were found manufacturing arrack in the forest land. One of the accused proceeded near PW1 with the Cra 2059/2004 6 kannas and the excise party caught him, at the same time excise party waiting on the other side also caught the other accused. They identified the distilled arrack, wash and coda. The utensils for manufacturing arrack was also found near the place of occurrence. The accused were arrested after preparing arrest memo. He took 300 ml as sample from arrack, 600 ml from coda and another 600 ml from wash. But he also affixed label in the seized liquor and sealed it at the place of occurrence. He prepared Ext.P1 seizure mahazar. Ext.P2 and P3 are the arrest memos. The seized articles were marked as MO1 to MO14. Even though PW1 stated that he affixed label in the sample packet and in the seized articles, it was not specifically mentioned in Ext.P1 seizure mahazar. During cross examination, he admitted that he affixed label in the presence of independent witnesses. 7. PW3 another official witness supported the evidence given by PW1. He also identified MO1 to MO14 and admitted the signature in Ext.P1 seizure mahazar. PW2, an independent witness admitted the signature in Cra 2059/2004 7 Ext.P1 to P3 deposed that he signed in those documents while he was standing in front of the house. He never saw the seizure of the contraband articles MO1 to MO14 from the place of manufacturing arrack. PW1 obtained the signature at 11 pm in the night. 8. PW4 is the Excise Inspector, who completed the investigation and laid charge before court. He obtained Ext.P9 chemical examination report. In Ext.P9 chemical examination report, ethyl alcohol was detected in the samples forwarded to the chemical examiner's lab. In Ext.P9, it is recorded that seals of the bottles were in tact and found tallied with the sample seal provided. But the Investigating Officer or detecting officer never obtained a sample seal at the time of seizure. Forwarding note was not prepared in this case. A similar situation was discussed by this court in Rajamma's case (supra) that no evidentiary value can be given to the chemical analysis report in the absence of any link evidence to show that the same sample which was drawn from the contraband article seized was produced before the chemical Cra 2059/2004 8 examiner's lab. ## 9. In **Ravi V. State of Kerala** (2011(3) KLT 353) it was held as follows. “The prosecution, in a case of this nature 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 by change of hands in a tamper-proof condition. (Vide **State of Rajasthan V. Daulath Ram** (AIR 1980 SC 1314) and **Valsala V. State of Kerala** (1993(2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the samples 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 (See Sathi V. State of Kerala (2007(1) KLT SN 57(C.No.82) and Sasidharan v. State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with Cra 2059/2004 9 the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant”. Therefore satisfactory link is necessary to show that the same bottle seized from the forest was properly sealed at the place of occurrence and forwarded to the chemical examiner's lab through court in a tamper proof condition. When there is no connecting evidence to show that the seized articles were produced before court in a tamper proof condition, the evidence in Ext.P9 cannot be used against the appellant for a conviction. In the result, the conviction and sentence passed by the court below under section 55(b) and (g) against the appellant are set aside. Appellant is acquitted and set at liberty. Appeal is allowed. ## P.D.RAJAN, JUDGE lgk