Sreekumaran Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE V.K.MOHANAN** **FRIDAY, THE 4TH DAY OF OCTOBER 2013/12TH ASWINA, 1935** **CRL.A.No. 1619 of 2005 ( )** **---------------------------** **AGAINST THE JUDGMENT IN SC 431/2003 of ADDL.SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA, DATED 23-08-2005** **APPELLANT(S)/ACCUSED.:** **----------------------** **SREEKUMARAN PILLAI, S/O.GOPALA PILLAI, PULLAMPLAVIL THEKKETHIL, ERUMAKKUZHI MURI, PALAMEL VILLAGE, MAVELIKKARA.** **BY ADV. SRI.VINOY VARGHESE KALLUMOOTTILL** **RESPONDENT(S)/COMPLAINANT.:** **---------------------------** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 04-10-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **ami/** ## **V.K.MOHANAN, J.** ## **------------------------------Crl.A.No.1619 of 2005** **------------------------------Dated this the 4[th] day of October, 2013.** ## **J U D G M E N T** The appellant is the sole accused in S.C.No.431/03 and by judgment dated 23.8.2005 of the court of Additional Sessions Judge, Fast Track court-II, Allappuzha, by which the appellant/accused is convicted and sentenced under section 55(a) of the Abkari Act and hence the appellant/ accused in the above sessions case, preferred this appeal challenging the above judgment. 2. The prosecution case is that on 7.3.2002 at about 4 p.m., when PW2-the Preventive Officer of Excise Circle office, Mavelikkara, along with his party were conducting patrol duty, the appellant was found possessing about 10 ltrs. of arrack in a kannas having capacity of 10 ltrs. kept in a bag, on the panchayat road in front of the house of one Vaidyan thundil Sahadevan near Kunnel **Crl.A.No.1619 of 2005** 2 Subramoniya Swamy temple at Eramathoor Muri in Palamel village and thereby the appellant has committed the offence punishable under section 8(1) and (2) of the Kerala Abkari Act. During the trial of the case, a formal charge for the offence under section 55(a) was framed against the appellant/accused, which when read over and explained to him, he denied the same and pleaded not guilty. Thus, the prosecution by examining Pws.1 to 5 and producing Exts.P1 to P5 adduced its evidence. M.Os.1 and 2 were identified and marked as material objects. From the side of the defence, Dws.1 and 2 were examined and produced Ext.D1 as well as Ext.X1. The defence took a contention to the effect that actually one Shaji was taken into custody for keeping illicit arrack, but upon his influence, after letting him free, the appellant was arrested and taken into custody from his panshop. The trial court finally found that the appellant has committed the offence under section 55 (a) of the Abkari Act as alleged by the prosecution and accordingly he is convicted thereunder. On such **Crl.A.No.1619 of 2005** 3 conviction, he is sentenced to undergo rigorous imprisonment for 1 year and to pay fine of `1 lakh and in default of payment, he is directed to undergo rigorous imprisonment for 3 months. Set off was allowed. 3. Heard Adv.Sri.Vinoy Varghese Kallummoottil learned counsel for the appellant and Adv.Sri.E.M.Abdul Khadir learned Public Prosecutor. 4. Learned counsel for the appellant vehemently submitted that the prosecution has miserably failed to prove that Ext.P5 chemical analysis report represents the sample allegedly taken from the contraband article, which was said to have in the possession of appellant at the time of the alleged seizure. In support of his contention, it is pointed out that the article allegedly seized and the material objects and the sample does not contain any seal affixed by the Officer who detected the seizure and no forwarding note is produced and marked, so as to ensure that the sample so seized had received at the hands of the Chemical Analyst. Per contra, the learned Public **Crl.A.No.1619 of 2005** 4 Prosecutor submitted that Ext.P4 thondi list shows that the material objects and the samples that seized were produced before the court and the sample eventually reached in the Chemical Lab and therefore the contention of the counsel for the appellant cannot be accepted. 5. I have carefully considered the contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor. I have perused the evidence and materials available on record. 6. In the light of the contentions advanced by the learned counsel for the appellant and the learned Public Prosecutor and in view of the evidence and material on record, the question to be considered is whether the learned Judge of the trial court is correct in his finding and justified in convicting the appellant. To prove the specific case of the prosecution, that the appellant was found in possession of 10 ltrs. of arrack at about 4 p.m. on 7.3.2002, the prosecution has examined Pws.1 to 5, among which PW1 was an attestor to Ext.P1 mahazar and signatory to **Crl.A.No.1619 of 2005** 5 Ext.P2 arrest memo. But during his examination, he turned hostile to the prosecution. Pws.2 and 3 are the Excise officials who involved in the detection of the crime and the seizure of the contraband article. When Pws.2 and 3 were examined, they have deposed in favour of the case of the prosecution. Thus on examination of the evidence of Pws.2 and 3, in the light of the contention advanced by the learned counsel for the appellant about the sampling, it can be seen that neither PW2 nor PW3 has got a case that any particular seal was affixed upon the label or on the sample bottle as well as on the cans. In Ext.P1 mahazar also, PW2 has recorded about the affixture of seal either on the sample bottle or on the can. What stated in Ext.P1 mahazar is that “...........സ�മ�ള�യ� എട�ത� സലത� വച� അടച�ക�ട� സ�ല ക�യ���. ട� ��ര�യമടക� �ന�സ�� അടച� ക�ട� സ�ല ക�യ���. ട� ��പ�യ�ല�� �ന�സ�ല�� പ�ത�യ�ട�യ�� സ�ക��ള�കടയ�� ഒപ�ട� എക" മമകല�പ�� മ�സ�ക" ലഘ�വ�വരണങള�� അടങ�യ മലബല��ള പ��ച�.” Besides the above, there is no claim that any seal of PW2 **Crl.A.No.1619 of 2005** 6 was affixed. It is true, as pointed out by the learned Public Prosecutor, that when PW2 was examined, particularly during his cross examination, as an answer to a question that, “M.O.1 ഏറ� വ�ങ�യ സമയ� ന�ങള വച സ�ല�ക" specimen seal ഏല�പ�ച�ര�മന� (Q). ഉവ� (A). ന�ല� ഷ�റ�ല specimen seal പ��ച�ണ� ഏല�പ�ച��. സ�മ�ള സ�ല�ല C.N. എന അകരമ�ണ�ള��. Metal seal ആണ�.” But the contents of Ext.P1 mahazar do not tally with the above claim of PW2-the Detecting officer. Suffice to say, no forwarding note is produced and marked before the court. Hence the claim of PW2 in his evidence regarding the affixture of sample, is not supported by the contemporary document, namely Ext.P1, which was prepared by none other than PW2. It appears from Ext.P5 chemical analysis report that the sample was forwarded to the chemical analysts lab as per the letter dated 14.3.2002. Though the sample was produced before the court as per Ext.P4 thondi list on 8.5.2002, there is no explanation for the delay in forwarding the sample. In the above **Crl.A.No.1619 of 2005** 7 circumstances, according to me, no evidential value can be attached to the endorsement contained in Ext.P4 analysis report to the effect that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any material or documentary evidence to show that sample seal was provided to the Chemical Analyst and as to when did the sample seal was provided and when did the same was forwarded to the Chemical Analyst, the above claim of chemical analyst found to be incorrect and unfounded. PW5 who is the Investigating officer has no claim that he has verified the sample seal etc. If that be so, according to me, as pointed out by the learned counsel for the appellant, the appellant is entitled to get the benefit of the decision reported in **Gopalan Vs. State of Kerala (2012(4) KLJ 400)** , wherein it is held that, “The prosecution should not rest content without producing the relevant documents and not following the procedure correctly. There is a duty cast upon the Investigating officer to verify the seal alleged to have been used to seal **Crl.A.No.1619 of 2005** 8 the MOs”. In paragraph 5 of the above decision, the learned Judge of this Court has observed and found that, “Another important aspect, according to the learned counsel, is the absence of specimen impression of the seal on the seizure mahazar and the property list. Curiously enough, copy of the forwarding note was also not marked. It is also important to note that PW6, the Investigating Officer has confessed that he did not see the seal alleged to have been used to seal M.O.1 and the sample bottle”. The above preposition and observation and finding is squarely applicable in the present case as well. I have already referred to and observed that in Ext.P1 seizure mahazar, there is no reference to the sample seal used by PW2 upon M.Os.1 and 2. In the present case also, no forwarding note is produced and marked. So, according to me, I am unable to approve the findings arrived on by the court below and the conviction recorded against the appellant for the above reasons. 7. Another learned Judge of this Court in the decision **Crl.A.No.1619 of 2005** 9 reported in **Sathi vs. State of Kerala (2007(1) KHC 778)** has held that, “The prosecution can succeed only if it is proved that sample which was analysed in the chemical examiner's laboratory was the very same sample drawn from the possession of the accused”. But in the present case, due to the defect which I noted above, it cannot be safely presume or arrive into a conclusion that the sample, which was drawn from the contraband article and which was allegedly seized from the possession of the appellant, has reached in the chemical lab and on that count also, the findings of the court below cannot be approved. 8. In the light of the above discussion and the materials and evidence referred to above and due to the paucity of evidence on the part of the prosecution and due to the above defect in the investigation, particularly in the light of the decisions cited supra, according to me, the findings of the court below and the conviction recorded by it against the appellant cannot be approved and consequently the conviction recorded by the court below 10 ## **Crl.A.No.1619 of 2005** against the appellant is set aside by extending the benefit of doubt. In the result, this appeal is allowed acquitting the appellant/accused of all the charges levelled against him and the judgment dated 23.8.2005 of the court of Additional Sessions Judge, Fast Track court-II, Alappuzha, in S.C.No.431/03 is set aside and the bail bond if any executed by the appellant shall stand cancelled and he is set at liberty. Sd/- **V.K.MOHANAN, Judge** ami/ //True copy// P.A. to Judge