Sreenivasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937** ## **CRL.A.No. 1099 of 2004** **---------------------------** **AGAINST THE JUDGMENT IN SC NO.57/2002 of ADDL.DISTRICT AND SESSIONS JUDGE, FAST TRACK (ADHOC-I), KOZHIKODE DATED 17-06-2004** **-----------------------------** ## **APPELLANT/ACCUSED:** **---------------------------------** **SREENIVASAN, AGED 42 YEARS, S/O. NALLAN, KOLLARAMPUNATHIL HOUSE, MAKKADA AMSOM, BADIROOR DESOM, KOZHIKODE.** ## **BY ADV. SRI.P.V.KUNHIKRISHNAN** ## **RESPONDENT/COMPLAINANT/STATE:** **------------------------------------------------------** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. N.SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rmm** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1099 of 2004 ---------------------------------Dated this the 18[th] day of February, 2016** ## **J U D G M E N T** This appeal is preferred by the accused against the conviction and sentence in S.C. No.57 of 2002 of the Additional Sessions Judge, Fast Track (Adhoc-I), Kozhikode under Sec.55(a) of the Kerala Abkari Act. Prosecution case is that on 01.11.1999 at 10.45 a.m., while the preventive officer and party, Excise Circle office, Kozhikode were conducting patrol duty, they found the accused carrying a jerry can through the BadiroorChelapram Public Road in front of the shop of the Melepurath Swami. On seeing the Excise party, the accused got frightened. The excise party intercepted him and inspected the jerry can and detected 10 litres of arrack in it. The accused was arrested and the contraband articles were seized. Reaching at the Excise Office, Chelannur, he registered Crime No.34 of 1999. After completing investigation, the Excise Inspector, Chelannur laid charge before the Judicial First Class Crl. Appeal No.1099 of 2004 2 Magistrate Court, Koyilandy. From there, the case was committed to Sessions Court, Kozhikode. Subsequently, it was made over to Additional Sessions Court, Fast Track (Adhoc-I), Kozhikode. 2. During trial, prosecution examined six witnesses and marked Ext.P1 to P6 as documentary evidence. MO1 was admitted in evidence as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused to rigorous imprisonment for two years and six months and a fine of Rs.1,00,000/- under Sec.55(a) of the Kerala Abkari Act in default, rigorous imprisonment for six months. Being aggrieved by that, the accused preferred this appeal. 3. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor. 4. The crux of the arguments raised by the appellant is that the prosecution has failed to prepare a ## Crl. Appeal No.1099 of 2004 3 forwarding note for sending the sample to the chemical examiner's lab. Since the offence alleged against the accused is a serious one, it is necessary that the seized article was to be produced before the court in a tamper proof condition. ## 5. This Court in **Rajamma Vs. State of Kerala** ## **[2014 (1) KLT 506]** held as follows: “Mere arrest of the accused with the material object is not sufficient to establish that the accused has committed the offence punishable under Sec.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. 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 Crl. Appeal No.1099 of 2004 4 specimen impression of the seal, alleged to have been affixed in the sample by PW1 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 the 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 possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.” 6. In this context, I have verified whether the excise officials followed the statutory provisions in the Excise Manual in this case. Crime- Detection, enquiry, Trials and Prevention are described in Chapter XXV of the Kerala Excise Manual. It is stated that the main duty of the officers of the Excise department is collection and maintenance of revenues, prevention and detection of crimes. If offences are not prevented and detected, there will be heavy leakage of revenues. Therefore, the excise officials of all ranks must pay attention to this aspect while discharging their official duty. The excise officers ## Crl. Appeal No.1099 of 2004 5 have the power to seize any liquor or intoxicating drugs, any vessel, vehicle, animal, package, receptacle or covering for such liquor or drugs while discharging their official duty. All the articles recovered in the course of search should be entered in the search list prepared on the spot. This list shall ordinarily be in Form ER.3 but when a printed form is not available, a list containing all the necessary particulars should be prepared in manuscript. All articles recovered must be carefully packed, labelled and sealed in the presence of search witnesses and their signature should be secured in the search list. Subsequently, they should be called upon to prove their signature. When a place is searched or arrest is made, a mahazar has to be drawn up. The witnesses tested earlier may also be witness to the mahazar. After the arrest, the mahazar and the search list should be produced before the Excise Inspector along with the person arrested. 7. The property seized may be sent over to the Excise Range Office having jurisdiction over the scene of ## Crl. Appeal No.1099 of 2004 6 occurrence along with the occurrence report. Any person who so produces the articles must demand of the officer in charge of the Excise Range Office a receipt detailing the article so deposited. 8. The officer depositing may also take samples from the Excise Officer. The Range Inspector shall affix his seal on the sample so taken. If the Squad Inspector detects a case in a Range and he deposits the articles in the Range office, the Squad Inspector shall affix his seal on the article deposited in the Range Office and he may draw sample from the articles so deposited and on those samples, the Excise Inspector of the Range must affix his seal. Rule 34 of the Excise Manual says about the taking of sample. “Contraband articles seized such as wash which may be, or are likely to become, so offensive as to be a nuisance need not be sent to the Range Office for safe custody. But if in any case an officer judges their retention to be necessary for production in court or for any other reasons, he must bury them or make such other arrangements for their safe custody as will not Crl. Appeal No.1099 of 2004 7 cause a nuisance. Generally speaking, such articles may safely be destroyed at once in the presence of the accused the Inspector after taking samples of them. The accused may also be required to affix his seal to the samples. Three samples of not less than (1)130 grams weight from each distinct kind of excisable drug and (2) two litres or such smaller quantity as may be available of each kind of liquor or wash, may be taken in the presence of Excise Inspector or senior most Excise Officer present and the accused. Each set of these samples should then be sealed and marked with the same number or mark the particulars of which should entered in the appropriate columns of the contraband register and in the occurrence report of the case. One sample set may be taken by the officer depositing it and two may be left with the officer in charge of the Range with the occurrence report of the case. If the articles are deposited by the inspector or a member of the Range staff, all the three may be retained in the Range Office. One of these samples will then be available for the use of the officer in charge of the Range for analysis, if need be and the other for the Magistrate's inspection, if the case is presented before a Magistrate.” Crl. Appeal No.1099 of 2004 8 9. The above instructions issued in the Excise Manual has to be followed by the Excise Officials and the Police officers while detecting an abkari offence. Moreover, report of search, seizure and arrest shall be immediately communicated to the Magistrate concerned by the Range Inspector within 24 hours. When a person is prosecuting on the allegation of committing an offence under the Abkari Act, the excise official has to prove the case beyond reasonable doubt. Strong suspicion about the commission of the offence or a moral conviction of the accused in a case is not proper. When an Inspector, dealing with Abkari cases, files charge sheet before the court for prosecuting a person, he must convince the concerned court, who will try the case, that the evidence produced before the court will be sufficient for a conviction irrespective of the knowledge of the officer. But, he must produce cogent evidence to prove the guilt of the accused. 10. Here, the evidence of PW1, who is the preventive officer who detected the offence, shows that Crl. Appeal No.1099 of 2004 9 on 01.11.1999, while he was proceeding through the Badiroor-Chelapram Public Road, he found the appellant carrying a jerry can in which, he detected 10 litres of arrack. He arrested the accused after preparing Ext.P1 arrest memo. The seizure of the articles were mentioned in Ext.P2 seizure mahazar. PW3, the excise guard supported the evidence of PW1. He also gave a similar version given by PW1. PW1 and PW3 identified MO1 jerry can. PW4, the independent witness, did not support the prosecution. He also denied the signature in Ext.P2 mahazar. PW2, the Excise Circle Inspector, Kozhikode, deposed that the accused and the seized articles were produced before him and he sent them to Chelannur Excise Range. PW6, the Excise Range Inspector, Chelannur, completed the investigation and laid charge before the Court. Exts.P4 is the crime and occurrence report. Ext.P5 is the property list. PW5, the Village Officer prepared Ext.P3, site plan. The seized articles were produced before the Judicial First Class Magistrate Court, Koyilandy. From there, the seized articles were Crl. Appeal No.1099 of 2004 10 forwarded to chemical examination lab, but no forwarding note was found marked in the trial court. PW6 claimed that he had prepared the forwarding note. A copy of the forwarding note was not furnished along with the final report to show that the contraband articles and the sample were properly sealed at the time of taking sample to prove the transparency in his procedural formalities. Ext.P6 chemical examination result itself is not sufficient for a conviction. Therefore, mere arrest of the accused with material is not sufficient to convict him under Sec.55 (a) of the Kerala Abkari Act. 11. Apex Court in **Makhan Singh v. State of Haryana [2016 (1) SEC 96],** while discussing the provisions of Narcotic Drugs and Psychotropic Substanaces Act held that, “when more stringent punishment is provided, more heavy is upon the prosecution to prove the offence and strict proof is necessary for proving the search, seizure and recovery”. 12. In the absence of forwarding note, the available evidence is insufficient to believe that proper ## Crl. Appeal No.1099 of 2004 11 sampling and sealing were conducted by the investigating officer. A division bench of this court in **Ravi Vs. State of Kerala [ 2011 (3) KLT 353]** held that the prosecution has a duty to show that the sample drawn from the contraband articles seized from the possession of the accused had reached in the chemical examination lab in a full proof condition. 13. Analysing the evidence in this case and Ext.P6 chemical examination report, I am of the view that it is unsafe to convict the accused only on the basis of available evidence. In the result, the conviction and sentence passed by the learned Additional Sessions Judge under Sec.55(a) of the Kerala Abkari Act is set aside. The accused is acquitted and set at liberty. Sd/- **P.D. RAJAN, JUDGE** NS/22/02/2016 / True Copy / P.A. To Judge