Soman s/o Nanu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **CRL.A.No.350 OF 2008** **SC 1438/2002 DATED 16-01-2008 OF ADDITIONAL SESSIONS COURT (ABKARI ACT CASES), KOTTARAKKARA** ## **APPELLANT/S:** **SOMAN S/O NANU, REGHUVILASAM, PADOM,PADOM MURI, KALANJOOR VILLAGE, PATHANAPURAM.** ## **BY ADV. SRI.ALEXANDER GEORGE** ## **RESPONDENT/S:** **1 STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2 SUB INSPECTOR POLICE PATHANAPURAM POLICE STATION, KOLLAM DISTRICT.** ## **OTHER PRESENT:** **SR.PP.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.350 of 2008 -2- ## **JUDGMENT** Dated this the 27[th] day of February, 2020 **The appellant stands convicted by the Additional Sessions Court (Abkari Act Cases), Kottarakara for the offence under Section 55(a) of the Abkari Act.** **2. The prosecution allegations, which found favour with the trial court and ended in the conviction of the appellant, are as follows:-** **The Assistant Sub Inspector of Police (PW2), Pathanapuram Police Station, while on law and order patrol duty, reached Padom Junction at Pathirickal at about 1.20 p.m. and from there, got information that the accused was engaged in sale of arrack at the nearby acacia plantation managed by the Kerala Forest Development Corporation. The patrol party proceeded through** Crl.A.No.350 of 2008 -3- **Padom-Mancode Panchayat road and on reaching the plantation, found the accused holding MO1 bottle and MO2 drinking glass. Though the accused attempted to flee on seeing the police party, he was intercepted and questioned. On examination of the contents in the bottle, it was found to contain 600 ml. of arrack and thereupon, the accused was arrested, the bottle and its contents seized and 180 ml. of sample drawn from it. On reaching the Police Station, Crime No.454 of 2000 of Pathanapuram Police Station was registered for the offences under Sections 55 (a) and (i) of the Abkari Act. The sample being forwarded for chemical analysis, Ext.P7 report was received finding that the sample contained ethyl alcohol of 30.65% by volume.** **3. In order to prove the prosecution case, PW1 to PW5 were examined and Exts.P1 to P7** Crl.A.No.350 of 2008 -4- **marked. MO1 and MO2 are the bottles containing the contraband arrack and the glass tumbler seized from the possession of the accused. When examined under Section 313 Cr.P.C, the accused denied the incriminating circumstances and did not choose to examine any witness or document on the defence side.** **4. The trial court, on consideration of the evidence and the contentions urged, came to the conclusion that the prosecution had succeeded in proving the accused guilty of the offence under Section 55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for six months and to pay a fine of Rs.1,00,000/-, with default sentence of three months simple imprisonment. The accused was found not guilty of the offence under Section 55(i) of the Abkari Act and was acquitted of the said offence.** Crl.A.No.350 of 2008 -5- **5. Heard Sri.Alexander George, learned Counsel for the appellant and Sri.B.Jayasurya, learned Senior Public Prosecutor.** **6. The main challenge against the impugned judgment is on the ground that PW2; who had detected the offence, seized the contraband and arrested the accused, was not an Abkari Officer as defined under Section 3 and notified under Section 4 of the Abkari Act. It is submitted that as on 22.10.2000; the date on which the offence was detected, only officers of and above the rank of Sub Inspector of Police, were competent to detect, investigate and file final report with respect to offences under the Abkari Act.** 7. **In** _**Mari Dhorai and another v. State of Kerala [2018 (4) KLT 1204]**_ **, it was held that the Assistant Sub Inspector of Police have conducted the search, seizure, sampling, registration of** Crl.A.No.350 of 2008 -6- **the crime and investigation. Later, the investigation was verified by the Sub Inspector of Police, who filed the final report. Referring to SRO.No.321/96 and Section 31 of the Abkari Act, the learned Single Judge held that police officers below the rank of Sub Inspector of Police were not entitled to conduct investigation. Based on the said finding, the appeal was allowed and the appellant acquitted. In the instant case also, it is the Assistant Sub Inspector who conducted the investigation and hence the dictum in** _**Mari Dhorai**_ **will apply on all fours.** **8. The next ground of challenge is based on the delay in producing the contraband and sample before the court. It is pointed out that even though the seizure was on 22.10.2000, the sample and contraband were produced before the court** Crl.A.No.350 of 2008 -7- **only on 15.11.2000. It is submitted that no acceptable explanation was submitted for the delay of 24 days in producing the sample.** **9. The learned Senior Public Prosecutor refutes the contention by stating that PW2 had deposed that even though the seized articles were forwarded to the court under Form 151 A on the date of seizure itself, it was not accepted by the court and that subsequently on 01.11.2000 also, the articles were produced in court, but again it was refused to be accepted and that finally on 15.11.2000 alone, the articles were accepted by the court. This omnibus statement by the investigating officer will not suffice as an explanation for the long delay of 24 days. If as stated by PW2, the material objects were attempted to be produced on earlier occasions, it was the duty of the prosecution to have examined** Crl.A.No.350 of 2008 -8- **either the police personnel who had taken the material objects to the court or the Thondi Section Clerk of the Magistrate's Court before whom it was produced. In the absence of such evidence, it is not possible to accept the statement of the investigating officer. The position that it is the duty of the prosecution to prove each link of the evidence regarding confiscation of the contraband up to the point it reached the hands of the Chemical Examiner is no longer** _**res integra.**_ **The mere fact that the contraband was seized will not lead to the conclusion that the sample produced for analysis is the sample drawn at the time of seizure, unless clear and cogent evidence in the form of Form 151 A under which the articles were produced in court, the forwarding note containing the sample seal and an acceptable explanation for the** Crl.A.No.350 of 2008 -9- **delay, if any, in producing the sample before the court, as also an assertion that the sample was in safe custody till it reached the court, is proved by the prosecution. Unfortunately, as far as the instant case is concerned, there is no acceptable explanation regarding the delay and no assertion as to the sample having been kept in safe custody till its production before the court and moreover, only a carbon copy of the alleged forwarding note dated 30.03.2000, which does not contain any material particulars or the sample of the seal affixed on the bottle sent for chemical analysis, was produced and marked in evidence. With these fatal defects, which definitely had vitiated the trial, the finding of conviction entered by the trial court cannot be sustained.** **In the result, the impugned judgment is set** Crl.A.No.350 of 2008 -10- **aside. Consequently, the appeal is allowed and the appellant acquitted. The bail bond executed by the appellant will stand cancelled.** **It is submitted that the appellant had deposited an amount of Rs.7,000/- as per the order of this Court in Crl.M.Appl. No.1528 of 2008 dated 18.02.2008. In view of his acquittal, the said amount of Rs.7,000/- shall be refunded to the appellant on production of a certified copy of this judgment.** sd/- **V.G.ARUN JUDGE** Scl/28.02.2020