Subbayyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH** **FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936** ## **CRL.A.No. 1159 of 2005** **---------------------------** ## **AGAINST THE JUDGMENT IN SC 899/2001 of ADDL. DISTRICT & SESSIONS COURT (ADHOC)-I, KOLLAM** **(CP 245/2000 of JUDICIAL FIRST CLASS MAGISTRATE-II, KOLLAM)** ## **APPELLANT:** **SUBBAYYAN, S/O.THAMPI CHETTIYAR, KARUTHAZITTANAZHIKAM VEEDU, THEKKEVILA CHERRY ERAVIPURAM VILLAGE, KOLLAM TALUK.** ## **BY ADV. SRI.C.RAJENDRAN** ## **RESPONDENT:** **STATE OF KERALA, RPRESENTED BY SUB INSPECTOR OF POLICE, KOLLAM EXCISE RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM.** **R1 BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = CRL.A. No. 1159 of 2005 = = = = = = = = = = = = = = = = = = = Dated this the 8[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)-I, Kollam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for six months. The appellant challenges the conviction and sentence passed against him by the court below, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. CRA. 1159/.2005 2 3. The prosecution case is briefly stated as follows: PW3, the Excise Inspector, Excise Range Office, Kollam, and his party were on patrol at Thekkevila Cheri in Eravipuram Village, at about 7p.m. on 25-11-1998. While so, the appellant was seen carrying a bag in his right hand. Seeing the excise party, the appellant attempted to flee away. But, PW3 stopped him there. On examining the bag carried by the appellant, two 750 ml.bottles containing full of arrack were found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW3 then and there preparing Ext.P6 Arrest Memo. Ext.P6(a) is the Arrest Notice. The two bottles containing full of arrack and the bag were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. PW3 had drawn two samples of about 300 ml. each of arrack in two 375 ml. bottles from the bulk contained in each of the two 750 ml. bottles. All the four bottles were sealed by PW3. Thereafter, PW3 reached the Excise Range Office, Kollam, with the appellant, CRA. 1159/.2005 3 contraband items and the records and registered Crime No.77 of 1998 of that Range Office. Ext.P2 is the Crime and Occurrence Report thus prepared by PW3. He had produced the appellant before the court along with the Remand Report. He had also produced the contraband including the samples before the court along with Ext.P3 List of Property and the Forwarding Note. Ext.P4 is a copy of the Forwarding Note. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. MO.1 series two in number are the two bottles seized with arrack. PW5, the Excise Inspector, Excise Range Office, Kollam, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court-II, Kollam. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court CRA. 1159/.2005 4 of Session, Kollam, and, from there, it was made over to the Principal Assistant Sessions Court, Kollam. Later, the case was transferred to the Additional Sessions Court(Adhoc)-I, Kollam. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P6 series and MO.1 series on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. DW1 was examined on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that PW3 and his party, while on CRA. 1159/.2005 5 patrol, detected the offence at about 7p.m. on 25-11-1998 and seized the contraband items from the appellant. PW3 is the Detecting Officer. PW4 accompanied him. Both these witnesses, by and large, deposed in support of the prosecution version of the occurrence. CWs.1 and 2 were cited as independent witnesses for proving the occurrence and preparation of Ext.P1 Seizure Mahazar. They were examined as PWs.1 and 2. Both these witnesses did not support the prosecution case. They have even denied the signatures seen affixed on Ext.P1 as that of them. Whether the evidence of PWs.3 and 4 can be relied on for finding the appellant guilty of a serious offence under Section 55(a) of the Abkari Act is the question to be considered. 6. PW3 deposed that he had produced the contraband including samples before the court along with Ext.P3 List of Property. Two properties are described in Ext.P3. Item 1 is two 700 ml.bottles fully containing arrack. Two samples of CRA. 1159/.2005 6 300 ml.each in two 375 ml. bottles drawn from the bulk contained in two 750 ml. bottles are described as item 2. If 300 ml.each is drawn from the two 750 ml. bottles fully containing arrack, then PW3 cannot produce item 1 describing so. After drawing 300 ml.each from 750 ml. bottles, the balance in them will only be 450 ml. each. Therefore, the description given in Ext.P3 cannot be accepted. It is seen that these properties were produced before the court on 26-11-1998 i.e. on the next day of the detection of the offence. But, another endorsement made by the office of the court is seen on Ext.P3 to the effect that the properties were received and entered in the register on 5-12-1998. Till then the properties produced before the court on 26-11-1998 were remaining in the office of the court. Under whose custody they were so remaining in the court? Was it under safe custody? The property clerk or any other person dealing with the Material Objects in the court had not been examined in this case. Therefore, the CRA. 1159/.2005 7 questions so raised are remaining unanswered in this case. 7. Another aspect has also to be considered along with this. It is the case of the prosecution that the samples as well as the bulk contained in two 750 ml.bottles were sealed by PW3 at the place of occurrence itself. It is so stated in Ext.P1 Seizure Mahazar. PW3 deposed also that they were so sealed. He stated that he had produced Ext.P3 List of Property before the court and also produced the Forwarding Note for subjecting the samples to chemical analysis. In Ext.P3, the samples are described as sealed. But, two 700 ml. bottles containing arrack are not described as sealed. If those two 700 ml.bottles containing arrack were also sealed as stated in Ext.P1 and deposed by PW3, what was the reason for not describing them as sealed in Ext.P3? No sample seal was affixed on Ext.P1. PW3 stated that he did not remember whether personal seal or official seal was affixed. He further stated that he did not remember whether the specimen seal was produced before the court or CRA. 1159/.2005 8 not. It is reported in Ext.P5 Certificate of Chemical Analysis that ethyl alcochol was detected in both the samples. It is also noted in this document that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? Ext.P4 is a copy of the Forwarding Note produced before the court. A space is specifically provided in Ext.P4 for affixing the impression of the sample seal. But, no sample seal is seen affixed in that space. Whether such a sample seal was affixed on the original of the Forwarding Note sent to the Chemical Examiner's Laboratory? The property clerk or other official who dealt with the Material Objects in the court was not examined for proving that fact. A copy of the Forwarding Note should be a copy with all the entries in the original of the Forwarding Note. In order to verify the contents including the sample seal affixed on the original of the Forwarding Note, a copy of the Forwarding Note is produced before the court and marked during trial. Therefore, if the CRA. 1159/.2005 9 sample seal is not seen affixed on the copy, it must be presumed that such a seal was not affixed on the original of the Forwarding Note. Then, no sanctity could be attached to the statement made by the Chemical Examiner in Ext.P5 that the seals on the sample bottles were found tallied with the sample seal provided because there is no proof that the sample of the seal claimed to have been affixed on the samples was in fact provided to the Chemical Examiner. Therefore, there is no assurance that the samples of the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the excise official which was affixed on the samples was 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 samples drawn from the bulk allegedly seized from the appellant. This Court in **Rajamma v. State of Kerala** CRA. 1159/.2005 10 ## **(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 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. Sate 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 CRA. 1159/.2005 11 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. 8. It is the prosecution case that the occurrence had taken place on the side of a road at Thekkevila Cheri in Eravipuram Village, as stated in Ext.P1 Seizure Mahazar. But, in order to prove the place of occurrence, the Investigating Agency had not prepared a Scene Mahazar in the presence of witnesses and proved the same before the court. PWs.3 and 4 alone deposed in support of the prosecution case. But, both of them had not specifically identified the appellant in court. It is the case of the prosecution and PWs.3 and 4 that Ext.P1 Seizure Mahazar and Ext.P6 Arrest Memo were prepared at the scene place. CRA. 1159/.2005 12 The occurrence, according to the prosecution, had taken place at about 7 p.m. and preparation of these documents had taken place thereafter. Was it possible to prepare them without sufficient light? It cannot be found that, after 7.00 p.m., it was possible to prepare these documents. Because, sufficient light would not have been there at that time. Then, what was the source of light for preparing Exts.P1 and P6. Neither PW3 nor PW4 had explained the presence of any source of light for preparing them. 9. The prosecution heavily relies on the evidence of PWs.3 and 4 for proving their case. The investigation of the case had been conducted by PW5 and prepared the Final Report also by him. It can be seen from the records produced along with the Final Report that he had recorded the statements of only two witnesses questioned by him. He deposed that he had questioned the departmental witnesses but not recorded their statements. But, he had not stated in any of the documents submitted before the CRA. 1159/.2005 13 court that he had questioned the departmental witnesses. He also admitted that he had not noted down the date of questioning the witnesses in the Case Diary. Therefore, the case pleaded by PW5 that he had questioned the departmental witnesses cannot be accepted. The Investigating Agency in this case should have questioned the departmental witnesses including PWs.3 and 4 and reduced their statements into writing. Since PWs.3 and 4 were not so questioned and their statements were not reduced into writing, the appellant was practically denied an opportunity to test the veracity of the evidence tendered by them before the court. In short, no proper investigation had been conducted by the Investigating Agency in this case. This also throws considerable shadow of doubt on the prosecution case. 10. The occurrence, according to the prosecution, had taken place on 25-11-1998. I have already adverted to the nature of the investigation conducted in this case. Section CRA. 1159/.2005 14 50 of the Abkari Act mandates that every investigation into the offences 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 Sub-section (2) of Section 173 of Cr.P.C. to the concerned Magistrate. This mandate of the statute was not complied with by the prosecuting agency in this case. Ext.P5 Certificate of Chemical Analysis reached the court on 15-10-1999. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P5. But, the Investigating Agency had taken more than 13 months for submitting the Final Report before the court after the receipt of Ext.P5. Therefore, the inordinate delay that occurred in submitting the Final Report before the court, in the facts and circumstances of this case, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala [2013(3)KHC 780].** CRA. 1159/.2005 15 11. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 12. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 55(a) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge CRA. 1159/.2005 16