Sivanandan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **WEDNESDAY, THE 21ST DAY OF OCTOBER 2020 / 29TH ASWINA, 1942** ## **CRL.A.No.2517 OF 2007** **AGAINST THE JUDGMENT IN SC 288/2003 DATED 14-12-2007 OF III ADDITIONAL DISTRICT COURT, KOLLAM** ## **CP 302/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, KARUNAGAPPALLY** ## **APPELLANT/ACCUSED:** **SIVANANDAN, S/O. DAMODHARAN, KAMALA BHAVANAM, NELLIKULAM MURI, KULASEKHARAPURAM VILLAGE.** **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE, KARUNAGAPALLY, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. D. CHANDRASEKHAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20-10-2020, THE COURT ON 21-10-2020 DELIVERED THE FOLLOWING:** Crl.A.2517/2007 :2: ## **JUDGMENT** This is an appeal preferred under Section 374 of the Criminal Procedure Code, hereinafter referred to as 'the Code', challenging the correctness of the judgment passed by the III Additional Sessions Judge, Kollam, dated 14.12.2007 in SC No.288/2003. That case was taken on file on the final report laid by Excise Inspector, Karunagappilly in Crime No.57/2000 alleging offence punishable under Section 55(a) of the Abkari Act. The allegation is that on 17.05.2000 at 12.15 p.m., the Excise Inspector, Karunagappilly Range and party found him on the Vavvakkavu-Vallikkavu road in Kulasekharapuram village, in front of the house of one Kottayil Sreedharan, carrying a plastic bottle containing some liquid, about 1½ litres. Seeing the Excise party he tried to drift away, getting suspicion he was intercepted, the content of the bottle was tested by smelling and tasting; finding that it was illicit arrack, the contraband was seized in the presence of independent witnesses and the appellant was arrested. After taking the appellant and the contraband to the Excise range office the crime was registered. Crl.A.2517/2007 :3: Appellant was taken to the court on the same day along with the contraband and was remanded to judicial custody. On conclusion of investigation a final report was laid before the Judicial First Class Magistrate, Karunagappally where, after taking cognizance, the case was taken on file as CP No.302/2001. After completing the formalities, the case was committed to the Sessions Court and SC No.288/2003 was registered. Later, the case stood made over to the trial court. 2. After hearing counsel on both sides, the learned Additional Sessions Judge framed a charge alleging offence punishable under Section 8(2) of the Abkari Act, read over and explained to the appellant, which he denied. He was defended by his own counsel. 3. Prosecution evidence consists of the oral testimony of PWs 1 to 6 and Exts.P1 to P7. The material object was identified and marked as MO1. On conclusion of evidence, when examined under Section 313 of the Code, he denied all the incriminating materials. According to him, he was taken into custody from his own house on 16.05.2000, that nothing was seized from his possession. Thus, he reiterated his innocence. As the appellant Crl.A.2517/2007 :4: could not be acquitted under Section 232 of the Code, he was called upon to enter upon his evidence in defence. However, he did not adduce any evidence. After hearing counsel on both sides, by the impugned judgment, the learned Judge found him guilty under Section 8(2) of the Abkari Act, convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1 lakh, in default to undergo rigorous imprisonment for three months. That finding is the subject matter of this appeal. 4. I heard counsel on both sides. 5. The learned counsel for the appellant submitted that the sample was taken from the court, that a forwarding note is not marked or relied upon by the trial court which is fatal to the prosecution. Similarly, the seizure mahazar does not bear the seal of the detecting officer; independent witnesses did not support the prosecution case and, therefore, according to the learned counsel, it is unsafe to sustain the conviction based on the interested testimony of the Excise officials. 6. The crime was detected on 17.05.2000 by PW4 Excise Inspector. According to him, that day while himself and party were moving through the said road from west to east, in the jeep, the Crl.A.2517/2007 :5: appellant was found emerging to the road carrying a bottle containing liquid, seeing the Excise party he became panic and tried to move away; he was intercepted and when the content of the bottle was tested, it was found illicit arrack. Thus, under Ext.P2 mahazar the contraband was seized and the appellant was arrested after giving Ext.P3 notice to his wife. Everything was done in the presence of independent witnesses. After reaching back the office an occurrence report was prepared and the accused was taken before the Magistrate along with the contraband on the same day. This testimony of PW4 stands corroborated through PW6 Preventive Officer who accompanied the Inspector. 7. PWs 1 and 2 are independent occurrence witnesses who are shown attestors to the Ext.P2 seizure mahazar. Even though both of them admitted the signatures found on Ext.P2, denied its contents. They also deposed that they had not seen the Excise officers intercepting or seizing any offensive item from the appellant. Both of them were declared hostile to the prosecution. PW5 is the Investigating Officer. But the learned Sessions Judge found the evidence tendered by PWs 4 and 6 credible. He also noticed that the sample was collected by PW1 thondi clerk in the Crl.A.2517/2007 :6: presence of the Magistrate. Thus, placing reliance on Ext.P7 report, where it is stated that the sample contained liquid containing 26.09% by volume of ethyl alcohol. Finding that possessing such an item is an offence punishable under the Abkari Act, the appellant was convicted and sentenced, as aforestated. 8. There is no substance in the contention that the appellant is entitled to be acquitted on the ground that the Ext.P2 seizure mahazar does not contain seal or impression of the detecting officer. It has come out that immediately after the seizure, the item was brought before the court and sample was collected by PW1 in the presence of the Magistrate. There is no logic or statutory mandate that such a mahazar should bear the seal of the detecting officer. Here, the item was produced before court within hours and that was how the Magistrate had permitted PW1 to draw sample therefrom. 9. All the same, the contention that there is no forwarding note available in the case is a matter to be taken serious note of. The finding of conviction was reached mainly on the plank that the appellant was carrying illicit arrack with him. The basis of such a finding, in turn, was by placing implicit reliance on the Ext.P7 chemical examination report. The fact that sample was collected Crl.A.2517/2007 :7: from the court by PW1 thondi clerk is not a serious matter, even though it was ideal that the detecting officer himself should have taken sample from the spot itself. Whatever it may be, the Ext.P7 is the outcome of the examination of the sample sent from the court. The sample must have been sent with a forwarding note prepared by the detecting officer or the investigating officer, countersigned by the Magistrate. Here such an important document is missing. We cannot underestimate the importance of such a document. Even though Ext.P7 states that the seal on the bottle was intact and found tallying with the sample seal provided, we do not know what was the sample s8eal. That could have been deciphered only from the forwarding note. Since the very forwarding note is not available, the defence cannot be faulted for doubting the authenticity of the Ext.P7 report. It is the consistent view of this Court that non-availability of forwarding note in such a setting is an important lacuna on the part of the prosecution. In **Vijay Pande v. State of Uttar Pradesh [AIR 2019 SC 3569]** , in a similar setting the Apex Court held that the failure of the prosecution to relate the seized sample from the appellant makes the case no different from failure to produce the seized sample itself. Thus the Court held that mere production of a Crl.A.2517/2007 :8: laboratory report cannot be conclusive proof by itself, that the sample seized and that tested have to be correlated. This being the position of law, mere proof of a report like Ext.P7 issued from the Chemical Examination Laboratory cannot salvage the prosecution. Even PW1 has no idea about when and how the sample was sent for chemical examination. Since there is no correlation between the sample and the report, Ext.P7 does not lend any support to the prosecution. 10. The benefit of such a lacuna on the part of the prosecution should necessarily go to the appellant. He is entitled to get the benefit of doubt. Thus, granting benefit of doubt and in reversal of the finding of conviction, the appellant is found not guilty and acquitted under Section 386(b)(i) of the Code. He shall be set at liberty. Fine amount, if any, realised shall be refunded. Appeal is allowed as above. ## **K.HARIPAL JUDGE** okb/20.10.2020 //True copy// P.S. to Judge