Suresh v. Excise Inspector, Pathanamthitta & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY,THE 20TH DAY OF MARCH 2019 / 29TH PHALGUNA, 1940** **CRL.A.No. 2178 of 2004** **AGAINST THE JUDGMENT IN S.C. NO.370/2003 OF THE ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA DATED 18-11-2004** ## **APPELLANT/ACCUSED :** **SURESH, S/O KUNJUKUNJU, PUTHEN KOLLAKAROTTU VEEDU, KULANADU MURI, KULANADU VILLAGE, KOZHENCHERRY TALUK,PATHANAMTHITTA DIST.** **BY ADVS. SRI.V.SETHUNATH SRI.V.R.MANORANJAN (MUVATTUPUZHA)** ## **RESPONDENTS/COMPLAINANTS :** **1 THE EXCISE INSPECTOR, PATHANAMTHITTA. 2 THE STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR ADV. SRI.** ## **OTHER PRESENT:** **STATE ATTORNEY - SRI.K.V.SOHAN FOR RESPONDENT** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **CRL.A.No. 2178 of 2004** **2** ## **J U D G M E N T** This appeal is preferred against the conviction and sentence in S.C. No.370 of 2003 of the Additional Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta by the accused. Appellant was charge sheeted under Section 8 of the Abkari Act, 1077 (Kerala) and sentenced to rigorous imprisonment for two years, it was also directed that the period undergone by the accused in judicial custody shall be set off against the terms of imprisonment. Being aggrieved by that, he preferred this appeal. 2. It would be relevant to refer the charge against the accused in this case. The prosecution case is that on 14.07.1998, while the Preventive Officer, Excise Range office, Pathanamthitta was conducting patrol duty within his jurisdiction, when he reached near Valiakala Laksham Veedu Colony, the appellant was found walking through the side of the road carrying a cannas. The Preventive Officer interrupted him, thereafter inspected the cannas and detected 1½ litres of arrack. Appellant was arrested and the contraband articles were taken into custody. After **CRL.A.No. 2178 of 2004 3** completing investigation, the Excise Inspector, Pathanamthitta laid charge before the Judicial First Class Magistrate Court-I, Pathanamthitta, from there, the case was committed to Sessions Court for trial. 3. In the lower court, prosecution examined PW1 to PW5 and marked Exts.P1 to P9 as documentary evidence. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW1 and DW2 and marked Ext.D1. 4. The learned counsel appearing for the appellant contended that the sample seal was not affixed in Ext.P6 forwarding note. The seizure was on 14.07.1998 and the samples were produced before the Judicial First Class Magistrate Court-I, Pathanamthitta on the same day, but it was forwarded to the Chemical Examiner's Lab only on 19.06.2001. The delay in forwarding the sample from Court to the Chemical Examiner's Lab was not properly explained by the investigating officer. The final report was filed only after four years, which is violation of Section 50(1) of the Kerala Abkari Act. Every investigation into the offence **CRL.A.No. 2178 of 2004 4** under the Kerala Abkari Act shall be completed without unnecessary delay. 5. The seizure of the contraband was made by PW1 while conducting patrol duty on 14.07.1998 at 12.15 p.m. His case is that, when the excise party reached near Thottakavu temple, the accused was found carrying MO1. On seeing the excise party, he got frightened and tried to escape. PW1 inspected the cannas and detected arrack therein. He took 300 m.l. of arrack as sample, thereafter arrested him. The sample and balance arrack were sealed and taken into custody after preparing Ext.P1 mahazar. After reaching at the excise office, he registered Ext.P3 occurrence report. Accused was produced before the Court as per Ext.P4 remand application. The property list was also produced in the lower court which was marked as Ext.P1. The sample was subsequently forwarded to Chemical Examiner's Lab with a requisition and Ext.P6 is the copy of the request. Ext.P7 is the Chemical Examiner's Report. PW1, in his cross examination stated about the procedure for sealing the sample, but he admitted that the label was not found in MO1 when he was examined before **CRL.A.No. 2178 of 2004 5** Court. PW1 admitted that he affixed his personal seal but sample impression was not produced before the court. PW2, another Excise Preventive Officer, supported the seizure of MO1 from the appellant, who reiterated the same story stated by PW1. He could not identify the sample seal and label in MO1. He also admitted that MO1 was sealed at the place of occurrence itself. PW3, the independent witness, did not support the case of PW1 and PW2. ## 6. Apex Court in State of **Rajasthan v. Daulat Ram AIR [1980 SC 1314]** held as follows: The prosecution has not taken the Court into confidence in disclosing as to the reasons which the office of the Superintendent of Police refused to take the samples. Even though the lables were not in order it was for the prosecution affirmatively to prove that the seals were still in tact. It is true that Harak Chand and Jabbar Singh have stated that the seals of the samples were tact so land as they were in their custody. But then as pointed out above neither Jawan, Nathy, Gajraj, Aidanram and Assistant Public Analyst were examined hence it cannot be said that the prosecution has proved all the Jinks starting from the seizure of the sample till the same reached the hands of the Public Analyst so that the court could conclude that their seals remained in tact throughout. ## 7. There is a duty cast upon the investigating officer that when a specimen seal is produced before the court, he **CRL.A.No. 2178 of 2004 6** has to prove that he had followed the proper procedure of sealing the sample. Absolutely, there is no evidence before Court that PW1, the preventive officer, at the time of seizure of the above, has properly put his seal and specimen impression to identify the sample. Moreover, there is long delay in forwarding the seized article to the Chemical Examiner's Lab. In Ext.P6 forwarding note, the sample seal was not affixed. It is pertinent to note that the seizure was made on 14.07.1998 and the sample was forwarded to the Chemical Examiner's Lab on 19.06.2001. There is inordinate delay in forwarding the sample to the Chemical Examiner's Lab. It is the duty of the prosecution to show that the arrack alleged to be seized from the possession of the appellant, had ultimately reached at the Chemical Examiner's Lab in a tamper proof condition. 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. This Court settled the law in **Ravi v. State of Kerala [2011 (3) KLT** **CRL.A.No. 2178 of 2004 7** ## **353]** and **Rajamma v. State of Kerala Rajamma** v **State** **of Kerala [2014(1) KLT 506]** . If such proof is not there, no conviction can be entered against the accused in a prosecution case unless, it is proved that, the sample analysed in the Chemical Examiner's lab was one and the same sample drawn from the contraband arrack found in the possession of the appellant. When there is delay in forwarding the sample and no explanation about the possession of the arrack and delay, the accused is entitled to get the benefit of doubt. Even though the appellant examined DWs.1 and 2, it will not improve the defence set out by the appellant. ## 8. Apex Court in **Mohan Lal v. State of Punjab [2018 (3) KLT 852 (SC)]** held as follows: 12. That investigation in a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on part of the accused was noticed in Babubhai v. State of Gujrat [2010 (3) KLT Suppl. 122 (SC)]=[2010 (12) SCC 254] as follows: 32. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation **CRL.A.No. 2178 of 2004** **8** avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer “is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth”. 33. In State of Bihar v. P.P.Sharma this Court has held as under. “57.--- Investigation is a delicate painstaking and dextrous process. Ethical conduct is absolutely essential for investigative professionalism... Therefore, before countenancing such allegations of mala fides or bias it is salutary and an onerous duty and responsibility of the court, not only to insist upon making specific and definite allegations of personal animosity against the investigating officer at the start of the investigation but also must insist to establish and prove them from the facts and circumstances to the satisfaction of the court. *** 59. Malice in law could be inferred from doing of wrongful act intentionally without any just cause or excuse or without there being reasonable relation to the purpose of the exercise of statutory power----. 61. An investigating officer who is not sensitive to the constitutional mandates, may be prone to trample upon the personal liberty of a person when he is actuated by mala fides.” 9. There was lapses from the side of the investigating officer to prove that the sample was properly forwarded to **CRL.A.No. 2178 of 2004 9** the Chemical Examiner's Lab. In the absence of corroborative evidence, the appellant is entitled to get the benefit of doubt. 10. In the result, the conviction and sentence passed by the Additional Sessions Judge (Adhoc), Fast Track-I, Pathanamthitta under Section 8 of the Abkari Act, 1077 (Kerala) is set aside. The accused is acquitted and set at liberty. Criminal appeal is disposed of as above. ## Sd/- **P.D. RAJAN, JUDGE** NS /True Copy/ P.A. To Judge