Sudevan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 18TH DAY OF JANUARY 2016/28TH POUSHA, 1937** **CRL.A.No. 1894 of 2004 (A)** **--------------------------AGAINST THE JUDGMENT IN SC 666/2002 of ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA DATED 03-11-2004** **APPELLANT(S)/ACCUSED::** **----------------------** **SUDEVAN, AGED 48 YEARS, S/O. MADHAVAN, NALUCHIRAYIL, NALLANICKAL MURI ARATTUPUZHA VILLAGE.** **BY ADV. SRI.S.SHANAVAS KHAN** **RESPONDENT(S)/COMPLAINANT::** **----------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1894 of 2004 ---------------------------------------------Dated this the 18[th] day of January, 2016 ## **JUDGMENT** This appeal is directed against the conviction and sentence in S.C.No.666/2002 of the Additional Sessions Judge, Fast Track Court-II, Alappuzha u/s.8(1) and (2) & 55 (a) of the Abkari Act. The charge against the appellant was that on 29.8.2001 at 5.30 p.m. he was found in possession of 2 ½ litres of arrack in a plastic can on the western side of Sreeveli temple, Arattupuzha by the Preventive Officer, Karthikappally, thereby committed the offence. The appellant was arrested and seized the arrack from his possession, reaching at the Excise Office, registered a crime and occurrence report. After completing Crl.A. No.1894/2004 2 investigation, the Excise Inspector, Karthikappally Excise Range laid charge before Judicial First Class Magistrate-I, Harippad, from there the case was committed to Sessions Court, Alappuzha. 2. During trial, prosecution examined five witnesses and marked Exts.P1 to P4 as documentary evidence. MO1 and MO2 were marked as material objects. 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 and sentenced to rigorous imprisonment for one year and fine of 1 lakh, in₹ default rigorous imprisonment for three months. Being aggrieved by that, he preferred this criminal appeal. 3. The learned counsel appearing for the appellant contended that there is no forwarding note prepared by Crl.A. No.1894/2004 3 the investigating officer for producing the seized article and sample before Court. Therefore, the evidence in Ext.P4 chemical analysis report is not sufficient for a conviction and the appellant is entitled to get the benefit of doubt. 4. The learned Public Prosecutor admitted that there is no forwarding note, but the seized articles were produced before Court on the same day itself, which is clear from the endorsement in Ext.P3. 5. This Court in **Rajamma** v. **State of Kerala** [2014(1) KLT 506] discussed the impact of non-production of forwarding note when the sample was produced before Court for chemical examination. This Court held that mere arrest of the accused with material objects is not sufficient to establish that the accused committed an offence punishable u/s.55(a) of the Abkari Act. In Crl.A. No.1894/2004 4 ## Rajamma's case (supra), it is held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 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. 6. In this context, I have considered the occurrence evidence adduced in this case. PW1, who was the preventive officer, deposed that on 29.8.2001, while he was conducting patrol duty in the evening and on reaching the place of occurrence, the accused was found carrying a plastic bag and on seeing the Excise Party, he was frightened. PW1 intercepted him, inspected the plastic bag and detected 2 ½ litres of arrack in it. He took 200ml as sample. The accused was arrested and Crl.A. No.1894/2004 5 contraband articles were seized after preparing Ext.P1 mahazar. MO1 and MO2 were the seized articles. During cross examination PW1 admitted that the independent witnesses present there saw the seizure of arrack. PW2 Excise Guard supported the evidence of PW1. In order to avoid repetition of the same version stated by PW1, I am not reiterating the oral evidence of PW2. Analysing the oral evidence of PW1 and PW2, it is clear that they have not prepared a forwarding note after seizure of MO1 and MO2, but they prepared Ext.P1 seizure mahazar. 7. The independent witness present there attested Ext.P1 mahazar. The seal in MO1 was also identified by PW3. This witness was declared hostile. PW4 registered the crime and prepared Ext.P2 occurrence report. The accused was produced before Court as per Ext.P3. He also prepared a requisition for sending the sample to chemical Crl.A. No.1894/2004 6 examiner's lab. A close scrutiny of the oral evidence of these two witnesses, it is clear that PW1 had never prepared a forwarding note. Ext.P4 is the chemical examiner's result, which shows that 36.28% of ethyl alcohol was detected in the sample forwarded to the chemical examiner's lab. But, in Ext.P3, chemical examiner reported that seal of the bottle was in tact and found tallied with the sample seal provided. But the sample seal was not produced before court to ensure the transparency in preparing the forwarding note. The investigating officer deposed that he has not produced any sample seal before Court. Absolutely, there is no evidence to show that the sample seal and specimen signature were properly taken at the time of taking sample. 8. This Court in **Ravi** v **State of Kerala** [2011(3) KLT 353] held as follows: Crl.A. No.1894/2004 7 “13. It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature 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 by change of hands in a tamper-proof condition. (Vide - State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one 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 (See - Sathi v. State of Kerala (2007 (2) KLT SN 57 (C.No.82) and Sasidharan v.State of Kerala (2007(1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant.” ## When there is no evidence to show that the sample taken Crl.A. No.1894/2004 8 was produced before chemical examiner's lab in a tamper proof condition, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court-II, Alappuzha u/s.8(1) & (2) and 55(a) of the Abkari Act are set aside and the accused is set liberty. Crl.Appeal is allowed. ## **P.D. RAJAN, JUDGE.** acd Crl.A. No.1894/2004 9 Crl.A. No.1894/2004 10