Smt. Suprabha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 1ST DAY OF MARCH 2016/11TH PHALGUNA, 1937 CRL.A.No. 1511 of 2005 (F) ------------------------------AGAINST THE JUDGMENT IN SC 641/2003 of ADDL. SESSIONS COURT (ADHOC) III, TRIVANDRUM DATED 30-07-2005 C.P.52/02 OF JFCM-II, THIRUVANANTHAPURAM ------ APPELLANT/ACCUSED:: --------------------------- SMT.SUPRABHA, D/O. BHARGAVI, KOCHATHUVARAMBIL VEEDU, EDAYAR, MUTTATHARA VILLAGE THIRUVANANTHAPURAM. BY ADVS. SRI.J.HARIKUMAR SRI.SUMAN CHAKRAVARTHY RESPONDENT/COMPLAINANT:: ---------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1511 of 2005 -----------------------------------------------Dated this the 1[st] day of March, 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. She was sentenced to undergo simple imprisonment for three months and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for one month. Challenging the conviction and sentence 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: PW4, the Excise Inspector, Excise Range Office, Thiruvananthapuram, and his party were on patrol at Poonthura in Muttathara Village at about 6.30 a.m. on Crl. Appeal No.1511 of 2005 -2- 28-10-2000. While so, the appellant was seen coming from the opposite side carrying a five litre jerrycan in her right hand. Seeing the excise party, she attempted to flee away. But, she was stopped there by the excise party. On examining the jerrycan in the presence of witnesses, about three litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, she was arrested by PW4 then and there preparing Ext.P2 Arrest Memo. The jerrycan containing arrack was sealed and labelled and seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached the Excise Range Office, Thiruvananthapuram, with the appellant, contraband and the records. PW4 registered Crime No.83 of 2000 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW4. The appellant, contraband and the records were produced before the Judicial First Class Magistrate's Court-II, Thiruvananthapuram. Ext.P4 is the List of Property. PW4 had submitted a requisition before the court for taking Crl. Appeal No.1511 of 2005 -3- sample of the contraband and sending it to the Chemical Examiner's Laboratory for subjecting the same to chemical analysis. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was taken over by PW5, the Excise Inspector, Excise Range Office, Thiruvananthapuram. He had questioned the witnesses and recorded their statements. He had 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 P5 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. She denied all Crl. Appeal No.1511 of 2005 -4- the incriminating circumstances shown against her. The defence has not adduced any evidence. 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 her thereunder. She was heard on the question of sentence and imposed the sentence on her. 5. The appellant has raised various contentions challenging the conviction and sentence passed against her. It is the prosecution case that the appellant was found in possession of about three litres of arrack in a jerrycan at about 6.30 a.m. on 28-10-2000. She was arrested by PW4 then and there and the contraband was seized under Ext.P1 Seizure Mahazar. It is noted in Ext.P1 that the jerrycan containing the contraband was sealed by PW4 before it was seized. PW4 and PW1, the Excise Preventive Officer claimed to have accompanied PW4 at the time of detecting the offence, deposed also before the court that the jerrycan containing arrack was so sealed. PW1 deposed that the jerrycan was so sealed with the seal of the office having the Crl. Appeal No.1511 of 2005 -5- impression 'Shankhu'. PW4 deposed that the jerrycan was so sealed with the official seal of the Range Officer having the impression 'Shankhu'. No sample impression of the seal claimed to have been affixed on the jerrycan is seen affixed in Ext.P1 Seizure Mahazar. Similarly, no such sample impression is seen affixed in Ext.P4 List of Property. Moreover, in Ext.P4, the jerrycan containing arrack is not described as sealed. 6. It is an admitted case of the prosecution that no sample of the contraband was taken from the bulk contained in the jerrycan at the scene of occurrence for the purpose of subjecting the same to chemical analysis. But, their case is that a requisition has been given to the court for taking sample for the purpose of chemical analysis. It can be seen from Ext.P4 List of Property that sample of the contraband was taken from the court on 28-10-2000 itself as noted in it. Who has taken that sample from the contraband? No answer is forthcoming. The property clerk of the court or some other officer who was in charge of the properties was not Crl. Appeal No.1511 of 2005 -6- examined. The evidence available in this case does not prove the case of the prosecution that the jerrycan was sealed and labelled as described in Ext.P1 Seizure Mahazar. In short, there is no evidence to show that the sample subjected to chemical analysis was drawn from the bulk of the contraband produced before the court. 7. The jerrycan containing arrack is sealed, primarily, for the purpose of ascertaining its identity. In this case, neither in Ext.P1 Seizure Mahazar nor in Ext.P4 List of Property, a sample impression of the seal claimed to have been affixed on the jerrycan containing arrack was provided for comparison. Unless such a sample impression is available in the court, there is no assurance that the officer concerned has taken the sample from the bulk of the contraband allegedly seized from the accused in a case. That apart, in this case, the property clerk in the court was not examined. Therefore, there is absolutely no assurance that the sample was really taken from the bulk allegedly seized from the appellant. Such an assurance is possible only when the Crl. Appeal No.1511 of 2005 -7- sample of the seal affixed on the jerrycan is provided for comparison in the court for ensuring the identity of the contraband produced. Such a link evidence is missing in this case. Therefore, there is no assurance that the sample taken from the court was from the contraband allegedly seized from the appellant and the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 8. This Court in **Sasidharan v. State of Kerala (2007** ## **(1) KLT 720)** has held as follows: “9. It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more and the other witness was not available. But the evidence of PWs 1 and 2 is quite credible to show that the accused was apprehended with a can allegedly containing contraband arrack. Notwithstanding the physical confirmation by PW1 of the contents in the can to be arrack by taste and smell the prosecution was not content with that identification. That is why PW4 filed the forwarding note before the court for taking sample and despatching the same for chemical examination. Indeed, the law also insists on such a course of action (see AIR 1967 SC 1550 - State of A.P. v. Madiga Boosenna & Ors. and 1970 KLT 427 Crl. Appeal No.1511 of 2005 -8- Muthan Ankannithu v. State of Kerala). But there is no evidence to show that sample was taken from the can produced in court and that it was the said sample which was tested by the Chemical Examiner. The property list shows that the can which was received in court on 10-02-1998, was directed to be returned to the Excise Inspector himself for safe custody after taking sample therefrom. The said endorsement on the reverse of the property list does not prove that a sample was drawn from the can which was produced in court. The thondy clerk, who was in charge of the M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. There is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused. When the sample changed hands before reaching the Chemical Examiner the Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not been tampered with (see AIR 1980 SC 1314 State of Rajasthan v. Daulat Ram and 1993 (2) KLT 550 SC - Valsala v. State of Kerala). The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner Crl. Appeal No.1511 of 2005 -9- in a fool proof condition. For this, there is no evidence.” In the case on hand, as already found, there is absolutely no evidence to show that the sample sent for chemical analysis was drawn from the contraband allegedly seized. This is fatal to the prosecution case. 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 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. Therefore, in the case on hand, Ext.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. Crl. Appeal No.1511 of 2005 -10- 9. It is reported in Ext.P5 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample and the sample of liquid contained 14.60% by volume of ethyl alcohol. It is also certified in this document that the seal on the bottle was intact and found tallied with the sample seal provided. Since, there is no assurance that the sample taken from the court was really from the bulk allegedly seized from the appellant as already found, the report contained in Ext.P5 that ethyl alcohol was detected in the sample cannot have any impact in the case on hand. Such a report cannot be accepted as proof for finding that arrack was found in the possession of the appellant as alleged by the prosecution. 10. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: - “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. - (2) As soon as investigation into the Crl. Appeal No.1511 of 2005 -11- offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. There was inordinate delay in conducting investigation of the case and submitting Final Report before the court. No valid explanation was offered by the prosecution for the same. The alleged occurrence in this case was on 28-10-2000. Ext.P5 Certificate of Chemical Analysis dated 29-01-2001 had been received by the court on 09-02-2001. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P5. But, the Crl. Appeal No.1511 of 2005 -12- investigating agency had not even commenced the investigation by that time. In fact, the witnesses were questioned by the Investigating Officer only on 16-12-2001 and on 17-12-2001 and the Final Report was submitted before the court only on 02-02-2002 i.e., after a period of about one year after the receipt of Ext.P5 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances of the case, throws considerable shadow of doubt on the prosecution version of occurrence and is fatal to the prosecution case. This is more so in the light of the evidence of PW4 himself that he continued in the Excise Range Office, Thiruvananthapuram, 6 to 7 months more after the occurrence in this case. He has not even offered any explanation for not conducting the investigation of this case during his period. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . The appellant pleaded total innocence in this case. Crl. Appeal No.1511 of 2005 -13- She alleged that her husband was illegally taken into custody by PW4. She went to the Excise Range Office and explained about the innocence of her husband. She used heated words against PW4 in that connection. For that reason, she was falsely implicated by PW4 in this case. PWs.1 and 4, by and large, supported the prosecution version of occurrence. PWs.2 and 3 were cited and examined as independent occurrence witnesses. They have not supported the prosecution version of occurrence. Their evidence is of no use for the prosecution for proving their case. The investigating agency has not prepared a Scene Mahazar showing the place of occurrence in this case. No explanation was also offered for not doing so. When all these facts are considered in the light of the findings already entered, this Court is of the view that the appellant, at least, is entitled to the benefit of doubt. 12. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. She is entitled to an order of acquittal of the offence Crl. Appeal No.1511 of 2005 -14- alleged against her. 13. In the result, the conviction and sentence passed by the court below against the appellant are set aside. She is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. She is set at liberty. The bail bond executed by her shall stand cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to her. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- P.A. TO JUDGE //TRUE COPY//