Surendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 29TH DAY OF FEBRUARY 2016/10TH PHALGUNA, 1937** **CRL.A.No. 1271 of 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC NO.601/2001 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK-II, PATHANAMTHITTA DATED 08.07.2004** **------------------------------** **APPELLANT(S)/ACCUSED: --------------------** **SURENDRAN, S/O. RAGHAVAN, CHATHANNOORTHEKKETHIL HOUSE, PADUKKOTTUNGAL MURI, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK.** **BY ADVS.SRI.N.B.ANOOP SRI.CIBI THOMAS** **RESPONDENT(S)/COMPLAINANT & STATE:** **----------------------------------** ## **1. THE EXCISE INSPECTOR, ADOOR.** **2. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.DHANESH MATHEW MANJOORAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **NS** ## **P.D. RAJAN, J. -------------------------------Crl. Appeal No.1271 of 2004 ---------------------------------Dated this the 29[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.601 of 2001 of the Additional Sessions Judge, (Adhoc), Fast Track-II, Pathanamthitta under Sec.8(2) of the Kerala Abkari Act. The charge against the appellant is that on 06.06.1998 at 10.00 a.m., the appellant was found in possession of 600 m.l. of arrack on the Pulivarathilpadi-Thottathilpadi Panchayath road in Padukottakkal kara in Pandalam Thekkekkara village. The Excise Inspector arrested the accused and seized the contraband article, thereafter registered a crime. After completing investigation, the Excise Inspector, Adoor laid charge before the Judicial First Class Magistrate Court, Adoor, subsequently, it was committed to Sessions Court, Pathanamthitta. From there, it was made over to Additional Sessions Judge. 2. During trial, prosecution examined PW1 to PW8 and marked Exts.P1 to P8. MO1 was admitted as ## Crl. Appeal No.1271 of 2004 2 material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Sec.313 Cr.P.C. Accused examined DW1 to prove his defence case. The learned Sessions Judge convicted the accused under Sec.8(2) of the Kerala Abkari Act and sentenced him to simple imprisonment for one year and fine of Rs.1,00,000/- (Rupees one lakh only) with default sentence of one year. Being aggrieved by that, the accused preferred this appeal. ## 3. Heard both sides. 4. The main contention advanced by the learned counsel for the appellant is that there is no independent corroboration to the alleged seizure. The oral testimony of the official witness itself is not sufficient to prove the seizure. The offence was detected by PW1. The oral evidence of PW1 shows that on 06.06.1998 at 9.00 a.m., while he was conducting patrol duty, the appellant was found carrying 600 ml of arrack and walking through the Pulivarathilpadi-Thottathilpadi Panchayath road. On seeing the excise party, he frightened. Upon suspicion, they intercepted him and inspected the bottle and Crl. Appeal No.1271 of 2004 3 detected arrack in it. For that, he prepared Ext.P1 arrest memo and Ext.P2 seizure mahazar. The independent witness present there attested Ext.P2. MO1 is the arrack bottle seized from the place of occurrence. He affixed a label on it. The accused and PW1 signed in it. Subsequently, the articles were entrusted in the excise office. But, he has not stated that the bottle was sealed at the place of occurrence. Analysing the oral evidence of PW1, it is clear that the seized article were not sealed at the place of occurrence. 5. PW2, Preventive Officer supported the oral evidence of PW1. He also identified MO1 and also stated the same story as stated by PW1. He deposed that MO1 was sealed and taken into custody in the presence of independent witness. He identified the label affixed in MO1 at the place of occurrence. 6. PW3, an independent witness, deposed that he never saw the arrest of the appellant and seizure of MO1 from him. He denied the signature in Ext.P2. The denied portion of the statement of PW3 was marked as Exts.P3, P3(a) and P3(b). PW4, another independent ## Crl. Appeal No.1271 of 2004 4 witness, also did not support the prosecution case. He denied the signature in Ext.P2. A close scrutiny of the oral evidence of PW3 and PW4, it is true that the seizure of arrack was not supported by independent witness. 7. PW5 deposed that, while he was the Excise Range Inspector, on 06.06.1998, the accused and material objects were produced before him and on the basis of that, he registered a crime. Ext.P4 is the occurrence report. Ext.P5 is the property list. He prepared the request for forwarding the sample to the chemical examination lab. In cross examination, he admitted that the signatures of the witnesses were not obtained in the label affixed in MO1. 8. According to Abkari Manual, the articles recovered must be carefully packed, labelled and sealed in the presence of search witness who if literate, sign the labels affixed to each article. But in seizure, it says about the signature of the officer detecting the sample but, the accused also required to affix his seal in the sample. PW5 admitted that he has not taken any sample from MO1. 9. PW6 deposed that he conducted investigation ## Crl. Appeal No.1271 of 2004 5 and laid charge before the court. He questioned the witnesses. The contraband article seized was examined in the chemical examination lab. Ext.P7 is the Chemical examination report, in which, it is stated that 19.31% of ethyal alcohol was detected in the sample. He also deposed that the sample was taken from the court. 10. PW7, the Despatch Clerk attached to Judicial First Class Magistrate Court, Adoor, deposed that the despatch register does not contain entries relating to the despatch of sample relating to T.R. No.103/98 of Adoor Excise Range. It was recorded in the local delivery book. PW8, Thondi Clerk, Judicial First Class Magistrate Court, Adoor, deposed that, in page no.300 of the thondi register of that court it would clearly show that the sample relating to the thondi bearing TR. No.103/98 of Adoor was received in court on 06.06.1998 and the register also contains the signature of the Excise Guard evidencing the receipt of sample therefrom. The sample was not produced before the court but, the excise guard received the sample and signed in it. He entered it in the register as per the direction of the Magistrate. Crl. Appeal No.1271 of 2004 6 11. The evidence in Ext.P7 shows that one sealed bottle containing 150 m.l. of clear and clourless liquid alleged to be arrack is involved in Crime No.23 of 1998 of Adoor Excise Range for analysis. The seal on the bottle was intact and found tallied with the sample seal provided. The articles have been examined under the personal supervision of the Assistant Chemical Examiner who issued Ext.P7, Chemical Analysis Report, in which, 19.31% of ethyl alcohol was detected in the sample. No documents have been produced by the prosecution to show that how Ext.P7 certificate was obtained by the Excise Inspector at the time of filing of the final report. Moreover, no documents had been produced in the Trial Court to show that the sample was taken from MO1. The thondi clerk deposed that the excise officer never produced any sample in the Judicial First Class Magistrate Court, Adoor. But, it is stated that the excise guard received the sample from that court. Who took sample was not stated by the prosecution. In such a situation, it is difficult to believe the oral evidence of PW7 that the sample was properly taken from MO1 as alleged Crl. Appeal No.1271 of 2004 7 by the prosecution. Whenever, the sample is taken from the court, it is the primary responsibility of PW7 to show that he took sample from court as per the direction of the Magistrate. On the other hand, if the detecting officer is taking sample, it is his duty to produce the sample before the court with proper seal and label in a tamper proof condition. In the absence of such oral and documentary evidence, it cannot be presumed that the seized article was kept under safe custody until it reached before the chemical examination lab. When proper sample was not taken at the time of seizure and no evidence to show that sample was taken from the court as per the direction of the Magistrate, I am of the opinion that there is no evidence for proper sampling. In such a situation, the prosecution can succeed only by establishing the fact that the arrack seized from the accused was properly sealed and labelled at the place of occurrence, proper sample was taken from it and produced the same before the court and, it was forwarded to the chemical examination lab in a tamper proof condition. 12. This court in **Ravi v. State of Kerala** ## Crl. Appeal No.1271 of 2004 8 ## **[2011 (3) KLT 353]** observed that : “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 (1) 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 PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant.” 13. Here, the Excise officer failed to affix the Crl. Appeal No.1271 of 2004 9 signature of the independent witnesses in the label, failed to take sample from the place of occurrence and beyond that, when the sample was produced in the excise office, he failed to take sample from the excise office. The main duty of the excise officials in collection of evidence and prevention of crime is to follow the procedure properly. If the evidence is collected without following the mandatory procedure prescribed in the excise manual that evidence is not sufficient for a conviction. In the result, the conviction and sentence passed by the Additional Sessions Judge under Sec.8(2) of the Abkari Act is set aside. The appellant is acquitted and set at liberty. Sd/- **P.D. RAJAN, JUDGE** NS/04/03/2016 / True Copy / P.A. To Judge