Sobha v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 CRL.A.No. 954 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 526/2003 of ADDITIONAL SESSIONS COURT, PATHANAMTHITTA DATED 18-04-2006 ## C.P. NO.39/03 OF THE JFCM-I, PATHANAMTHITTA ------- APPELLANT/ACCUSED: ------------------------- SOBHA, W/O. RAJU, OLIYILMELETHIL PUTHEN VEEDU, VAZHAMUTTOM MURI OMALLUR VILLAGE, KOZHENCHERRY TALUK PATHANAMTHITTA DISTRICT. BY ADV. SRI.PAULY MATHEW MURICKEN RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA REPRRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.954 of 2006 -----------------------------------------------Dated this the 17[th] day of February, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. She was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple imprisonment for two years. 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: PW1, the Excise Inspector attached to the Excise Circle Office, Pathanamthitta, and his party were on patrol at Vazhamuttom in Omallur Village at about 1.15 p.m. on Crl. Appeal No.954 of 2006 -2- 05-12-2001. While so, the appellant was seen coming from the opposite side carrying a 2.5 litre jerrycan in her right hand. Seeing the excise party, she attempted to flee away. But the excise party stopped her there. On examining the jerrycan carried by her, about 2 litres of arrack was found in it. Since she has committed an offence under the Abkari Act, with the help of the women police constables, she was arrested then and there. Ext.P2 is the Arrest Memo. The jerrycan containing arrack was seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 has drawn 300 ml. of arrack as sample in a 375 ml. bottle from the bulk contained in the jerrycan. The sample bottle and the jerrycan containing arrack were sealed by PW1. Thereafter, PW1 and his party reached the Excise Circle Office, Pathanamthitta, with the appellant, properties and the records. Subsequently, the appellant, properties and the records were handed over to PW5, the Preventive Officer in charge of Excise Inspector, Excise Range Office, Pathanamthitta. PW5 registered Crime No.30 of 2001 of that Crl. Appeal No.954 of 2006 -3- Range Office in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report thus prepared by PW5. He has produced the appellant, properties and the records before the Judicial First Class Magistrate's Court-I, Pathanamthitta. Ext.P6 is the List of Property and Ext.P7 is the Remand Report. Ext.P8 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW6, the Circle Inspector of Excise, Excise Circle Office, Pathanamthitta. He has questioned the witnesses and recorded their statements. He has 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, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-I, Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) Crl. Appeal No.954 of 2006 -4- of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P8 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. She denied all 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 case of the prosecution that the appellant was found in possession of 2 litres of arrack at about 1.15 p.m. on 05-12-2001. She was arrested then and there and the contraband was seized. A sample of the contraband was taken in a 375 ml. bottle and both the sample and the jerrycan containing arrack were sealed by PW1. Subsequently, PW5 produced them before the court. Crl. Appeal No.954 of 2006 -5- 6. It is reported in Ext.P8 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample and the sample of liquid contained 28.85% by volume of ethyl alcohol. It is also stated in this document that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? It is stated in Ext.P1 Seizure Mahazar that the sample bottle and the jerrycan containing arrack were sealed. The sample impression of that seal was not affixed on the Seizure Mahazar. PW1, the Detecting Officer, and PW2, the Preventive Officer claimed to have accompanied PW1 at the time of detecting the offence, deposed that they were so sealed. PW2 also deposed that the seal so affixed was the personal seal of PW1. It is noted in Ext.P6 List of Property that the jerrycan containing arrack and the sample bottle were sealed. PW5 deposed before the court that he had given a requisition for subjecting the sample to chemical analysis. He also stated that that fact was mentioned in Ext.P7 Remand Report. It is noted in Ext.P7 Remand Report Crl. Appeal No.954 of 2006 -6- that a request for chemical analysis was produced before the court. A copy of the Forwarding Note or any other such requisition for chemical analysis is not seen available among the records. PW5 deposed that he had not received a paper affixed with the sample impression of the seal. He further stated that Ext.P1 Seizure Mahazar did not show the nature of the seal affixed. This evidence given by PW5 shows that there was no occasion for him to produce a paper or requisition affixed with the sample of the seal affixed on the sample bottle. PW1, the Detecting Officer, admitted that he had not produced anything before the court. He further stated that he had not produced before the court the impression of the seal affixed on the sample bottle. PW2 also deposed that the sample impression of the personal seal affixed by PW1 was not separately taken on a paper. PW6, the Investigating Officer, admitted that he had not seen the seal affixed by PW1. He also stated that he had not seen any document with such a seal. 7. A copy of the Forwarding Note or any other similar Crl. Appeal No.954 of 2006 -7- document was marked in this case. No such documents are available among the records. A combined reading of the evidence of PWs.1, 2, 5 and 6 would, definitely, go to show that there was no chance for reaching the sample impression of the seal claimed to have been affixed on the sample bottle by PW1 at the Chemical Examiner's Laboratory. If that be so, there is no assurance that the Chemical Examiner compared the seal on the sample bottle with the sample of that seal provided by the investigating agency. The comparison made may be with the seal of the court from where the sample was sent to the Chemical Examiner for analysis. The Property Clerk of the court was not examined in this case. If he was examined, it would have been helpful for the prosecution to prove as to whether the sample sent for chemical analysis was really the sample drawn by PW1 from the bulk of arrack allegedly seized from the appellant. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Crl. Appeal No.954 of 2006 -8- Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample bottle is provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. 8. 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 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 Crl. Appeal No.954 of 2006 -9- possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” 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.P8 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. The alleged occurrence in this case had taken place on 05-12-2001. The investigation of the case was conducted by PW6. He has questioned the witnesses during the period between 13-03-2003 and 06-04-2003. Neither PW6 nor any Crl. Appeal No.954 of 2006 -10- other official witnesses explained the reason for the delay that occurred in commencing, conducting and completing the investigation in this case. Section 50 of the Abkari Act 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 prosecuting agency in this case. What was the reason? No explanation is there. 10. Ext.P8 Certificate of Chemical Analysis dated 24-07-2002 had been received by the court on 27-09-2002. The investigating agency should have submitted the Final Report before the court immediately after the receipt of Ext.P8. But the investigation itself had been commenced only after much delay as already noted. After investigation by PW6, the Final Report reached the court only on 30-05-2003. The inordinate delay thus occurred in Crl. Appeal No.954 of 2006 -11- conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 11. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077)** . In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. 12. The prosecution case is that the appellant was found in possession of the contraband on a road at about 1.15 p.m. on 05-12-2001. The defence has totally denied the allegations made by the prosecution. According to the defence, no such occurrence had taken place at the alleged Crl. Appeal No.954 of 2006 -12- place and time. PW6 claimed that he had gone to the place of occurrence. But, no Scene Mahazar showing the place of occurrence has been prepared by the Investigating Officer. Why? In the nature of the defence advanced by the appellant, clear evidence with regard to the place of occurrence is necessary in this case. Such evidence was not collected by the investigating agency. PWs.3 and 4 were examined as independent occurrence witnesses for proving the prosecution case. They have not supported the prosecution version of occurrence. They were declared hostile to the prosecution. In view of the facts already considered, it is unsafe to convict the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act purely based on the evidence of PWs.1 and 2. When all these facts are considered, this Court is of the view that the appellant, at least, is entitled to the benefit of doubt. 13. 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.954 of 2006 -13- alleged against her. 14. 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. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE