Sunil Kumar v. The Excise Inspector, Kozhiylandy Excise Range and State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH MONDAY, THE 21ST DAY OF JULY 2014/30TH ASHADHA, 1936 CRL.A.No. 825 of 2004 -------------------------- AGAINST THE JUDGMENT IN SC 140/2002 of ADDL.SESSIONS COURT (ADHOC)II, KOZHIKODE DATED 4-5-2004 APPELLANT/ACCUSED: SUNIL KUMAR, S/O. DASAN, KUNNIYARA MEETHAL HOUSE, VIYYUR AMSOM, KOLLAM DESOM KOILANDY. BY ADV. SRI.T.G.RAJENDRAN RESPONDENTS/COMPLAINANT & STATE:: 1. THE EXCISE INSPECTOR, KOYILANDY EXCISE RANGE. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = Crl.A. No. 825 of 2004** **= = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of July, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-II, Kozhikode, for the offence under Section 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for 1½ years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo rigorous imprisonment for six months. The appellant challenges the conviction and sentence passed by the court below against him, in this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. CRL.A. No. 825/2004 2 3. The prosecution case is briefly stated as follows: PW1, the Excise Preventive Officer, Excise Circle Office, Perambra, and his party were on patrol at Kollam in Koyilandy Taluk, at about 6.30 a.m. on 27-11-1997. While so, the appellant was seen coming on a bicycle from the opposite side with a plastic bag hanging on the handlebar of the bicycle. Seeing him, entertaining a doubt, the excise party had given hand signal for stopping the bicycle. But, the appellant did not stop the cycle and moved forward. Therefore, one of the Excise Guards in the party followed him running and stopped him there. On examining the plastic bag hanging on the handlebar of the cycle, 10 litres of illicit arrack in a 10 litre jerrycan was found in it. Therefore, PW1 arrested the appellant then and there. Ext.P2 is the Arrest Memo prepared by PW1. The bicycle, the jerrycan containing 10 litres of illicit arrack and the plastic bag were seized by PW1 under Ext.P1 Seizure CRL.A. No. 825/2004 3 Mahazar in the presence of witnesses. He had drawn the sample of the illicit arrack contained in the jerrycan in a 180 ml. bottle. The sample and the jerrycan containing the arrack were sealed and labelled. Thereafter, PW1 reached the Excise Circle Office, Perambra, and handed over the appellant and the properties there. Subsequently, the appellant and the properties were produced before PW6, the Excise Inspector, Excise Range Office, Koyilandy. PW6 registered Crime No.115 of 1997 of that Range Office in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report prepared by PW6. He had produced the appellant along with Ext.P6 Remand Report before the court. He had produced the properties, except the bicycle, before the court along with Ext.P7 List of Property. The Forwarding Note for subjecting the sample to chemical analysis was also produced. Ext.P8 is a copy of that Forwarding Note. PW4, the Excise Inspector, Excise Range CRL.A. No. 825/2004 4 Office, Koyilandy, 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, Koyilandy. 4. The learned Magistrate committed the case to the Court of Session, Kozhikode, and, from there, it was made over to the Assistant Sessions Court, Koyilandy. Subsequently, the case was withdrawn and made over to the Additional Sessions Court(Adhoc)-II, Kozhikode. The court below framed a charge against the appellant alleging the offence under Section 58 of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 6 and marked Exts.P1 to P9 and MOs.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The appellant was CRL.A. No. 825/2004 5 examined as DW1 and another witness was examined as DW2 on the side of defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 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 the appellant was found transporting 10 litres of illicit arrack in a jerrycan at about 6.30 a.m. on 27-11-1997 and he was arrested then and there and the contraband was seized. A sample of the contraband was also drawn in a 180 ml. bottle. The contraband with the sample was produced before the court on 1-12-1997. What was the reason for the delay occurred in producing the contraband before the court? According to the prosecution, the contraband items were produced before CRL.A. No. 825/2004 6 the court by PW6. Neither PW6 nor any other official witnesses offered any explanation for the delay. The statement made by PW6 that the properties were under safe custody is no explanation for the delay occurred in producing the contraband before the court. There is no dispute regarding the fact that PW6 had produced Ext.P1 Seizure Mahazar, Ext.P2 Arrest Memo and Ext.P5 Crime and Occurrence Report before the court on 27-11-1997. The appellant was also produced on that day along with Ext.P6 Remand Report. Then, what was the special reason for not producing the contraband including the sample on that day? No answer is forthcoming. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. A learned Judge of this Court in **Ramankutty v. Excise Inspector (2013 (3) KHC 308)** found, for the reasons stated in that judgment, that CRL.A. No. 825/2004 7 an unexplained delay of a single day as fatal to the prosecution case. Since, in the case on hand, no valid explanation has been offered by the prosecution for the delay in producing the properties before the court, it is fatal to the prosecution case. 6. It is the prosecution case that the contraband including the sample were sealed by PW1 when they were seized. It is so stated in Ext.P1 Seizure Mahazar. PW1 deposed also that they were so sealed. PW2, the Excise Guard, who accompanied PW1 at the time of detection of the offence also deposed that the sample so taken was sealed. PW1 further stated that the seal so affixed was his personal seal. It was a seal made of iron. The alphabets 'N' and 'B' are there in the seal. PW2 also stated that the seal affixed was the personal seal of PW1. 7. Ext.P9 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in CRL.A. No. 825/2004 8 this document that ethyl alcohol was detected in the sample and the sample liquid contained 38.57% by volume of ethyl alcohol. It is also noted in Ext.P9 that the seal on the bottle was intact and found tallied with the sample seal provided. Which sample seal was so provided? PW1 specifically stated that he had not produced the specimen seal before the court. He had also stated that he had not handed over the specimen seal while handing over the properties. Ext.P8 Forwarding Note had been prepared by PW6. He had no occasion to affix the seal claimed to have been affixed by PW1 on the sample as it was not handed over to PW6. Moreover, PW6 stated that when the properties were sent to the court, his personal seal was affixed. Ext.P8 Forwarding Note has a space for affixing the sample seal. No seal of the Excise Officials is seen affixed in that space. But, a sample seal of the court is seen affixed. Unless the Chemical Examiner compares the seal affixed on the sample bottle by CRL.A. No. 825/2004 9 the Abkari Officer with the sample of that seal provided for comparison, there is no assurance that the sample drawn from the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. In the facts and circumstances of the case, as already noted, the comparison made by the Chemical Examiner is not with the sample seal of PW1, but with the sample seal of the court provided in Ext.P8. Merely comparing the seal of the court affixed on the packet containing sample with the specimen seal of the court will not give any assurance that the sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample 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 really examined the CRL.A. No. 825/2004 10 sample taken from the bulk allegedly seized from the appellant in this case. This Court in **Rajamma v. State of Kerala (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.” ## In **Ravi v. State of Kerala (supra),** this Court has held CRL.A. No. 825/2004 11 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 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, for the reasons already stated, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. The prosecution case is that the occurrence in this case was on 27-11-1997. PW4 deposed that he had conducted the investigation in this case. He had taken charge as the Excise Inspector at the Excise Range Office, Koyilandy, only on 9-6-2000. It is seen from the records CRL.A. No. 825/2004 12 that he had questioned the witnesses and recorded their statements in October,2000, April,2001 and May,2001. Therefore, it is quite evident that there was inordinate delay in conducting the investigation in this case. The delay thus occurred in conducting and completing the investigation has not been explained by any of the official witnesses examined before the court. Section 50 of the Abkari Act mandates that every investigation into the offence 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 has been violated by the prosecuting agency in this case. 9. Ext.P9 Certificate of Chemical Analysis dated 17-3-1998 had been received by the court on 27-5-1998. The Investigating Agency should have submitted the Final CRL.A. No. 825/2004 13 Report before the court soon after the receipt of Ext.P9 by the court. But, the investigation was delayed and the Final Report dated 22-5-2001 was filed before the court only in June, 2001. Therefore, the inordinate delay occurred in conducting investigation and submitting Final Report before the court in this case is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780).** 10. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. The appellant is entitled to an order of acquittal of the offence under Section 58 of the Abkari Act. 11. 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 58 of the Abkari Act. He is set at liberty. The bail bond executed by him shall CRL.A. No. 825/2004 14 stand cancelled. The amount, if any, deposited by the appellant shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. TO JUDGE ## CRL.A. No. 825/2004 15