Syamala v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 8TH DAY OF MARCH 2017/17TH PHALGUNA, 1938** ## **CRL.A.No. 293 of 2006 ( )** **--------------------------** **AGAINST THE JUDGMENT DATED 11.01.2006 IN SC 776/2000 of ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA.** ## **APPELLANT(S)/ACCUSED:** **-------------------------------------** **SYAMALA, W/O. KUMARESAN, PIRAVILAKOM VATTAVILA VEEDU, VIZHINJAM DESOM, VIZHINJAM VILLAGE.** ## **BY ADV. SRI.BLAZE K. JOSE** **RESPONDENT(S)/COMPLAINANT:** **-------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE SUB INSPECTOR OF POLICE, VIZHINJAM POLICE STATION.** **BY PUBLIC PROSECUTOR SMT.REKHA C.NAIR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rmm** ## **K.P. JYOTHINDRANATH, J.** ## **-----------------------------** ## **CRL. A. No.293 of 2006** **------------------------------------** Dated this the 8[th] day of March, 2017 ## **J U D G M E N T** This appeal is preferred by the appellant challenging the judgment of conviction and sentence dated 11.01.2006 made in S.C. No.766/2000 on the files of the Additional Sessions Court, Neyyattinkara. The conviction is under Section 58 of the Abkari Act and sentenced to undergo Rigorous imprisonment for 2 years and to pay fine of Rs.1,00,000/-. In default of payment of fine to undergo Rigorous imprisonment for a period of three months. 2. The prosecution case in a nutshell is as follows :- The Sub Inspector of Police of Vizhinjam Police Station, on a secret information, reached at channel side of Piravilakam of Vizhinjam Desom, Vizhinjam Village accompanied by a W.P.C. Accused was seen carrying a jerry can of two liter capacity containing about one liter of arrack. It was seized. It is the case that she was also CRL.A. No.293/2006 2 holding a tumbler in her hand. The said articles seized and a sample of 150 ml of the liquid in the can was taken as sample, the thondi articles were seized as per mahazar and thereafter a crime was registered. The accused along with the thondi articles were produced before the court. Thereafter a charge was filed for an offence under Section 55(a) of the Abkari Act. The court took cognizance of the offence. On committal, it was numbered as S.C. No.776/2000 and made over to the Additional Sessions Court for trial. The court examined four witnesses and Ext.P1 to P6 marked and MO1 also marked. After appreciating the evidence, the court convicted the accused and sentenced as stated above. 3. The main contention raised before this Court is regarding the identity of the property analysied and the report of which is marked as Exts.P5 and P6. It is the submission that it can be seen that no forwarding note marked in this case and the conviction based on the analysis report will not lie. CRL.A. No.293/2006 3 4. In this case, the main evidence consist of the oral evidence of PW1 to PW4. PW1 attested the mahazar and he admitted the signature in the mahazar and marked the same as Ext.P1. He further deposed before the court that he signed the mahazar from the Police Station and he signed as directed by the Abkari Contractor and further case is that he is an employee of the brandy shop of the Abkari Contractor at Vizhinjam. PW2 is the head constable who deposed that while the Sub Inspector arrested the accused he was present in the police team. Arrack in can was seized. The can is marked as MO1 by the witness as well as he deposed that a sample of 250 ml was taken from the contraband in another bottle of 750 ml capacity. He also deposed that no amount was seized from the accused. The suggestion was that a false case was foisted against the accused on a complaint made by a neighbour of PW3. Suggestion denied. PW3 is the Sub Inspector. According to him, on 26.04.1998 at about 8.00 'O' clock, the accused was arrested with a can as well as a tumbler and it was found that the can contained CRL.A. No.293/2006 4 arrack. Further evidence is that 250 ml sample was taken and sample as well as the can was sealed and thereafter a crime was registered in the Police Station. The FIR registered is marked as Ext.P2. The remand report sent to the court along with the accused is marked as Ext.P3. The articles were forwarded to the court incorporating 151 A form which is marked as Ext.P4. Further evidence is that a forwarding note was sent to the court for the analysis of contraband sample and the chemical analysis report is marked as Ext.P5. He also marked the can and bottle as MO1. 5. A short point argued before me is that even though one liter arrack was allegedly seized by the police and the same articles were produced before the court, there is nothing before this Court to link the chemical analysis report with the thodi article seized. In support of the same the learned counsel produced before me **Sumathy v. State of Kerala reported in [2016 (4) KHC 225]** wherein it was held that it is the duty of the Magistrate to ensure compliance of Chemico-Legal CRL.A. No.293/2006 5 Examination Rules and also held that when any liquor or illicit arrack is produced before the Magistrate, he shall follow instructions laid down in Rules, mandatory to prepare a forwarding note and carefully include their advice to Chemical Examiner, about the nature of the sample to the examination and furnish other information likely to assist the Chemical Examiner. That is, Kerala Chemico Legal Examination Rules 17 is mandatory. 6. In this regard, I perused the records and found that the copy of the forwarding note is not before the court. There will be no assurance regarding the compliance of Rule 17 as stated in _Sumathy's_ case (Supra). When the copy of the forwarding note is missing, assertion of the investigating officer to the effect that he requested the court to send the same will not be sufficient regarding the compliance of the formalities. Then considering all aspect, including the nature of sentence that has to be imposed in an offence like this, the strict compliance of the rules and procedures are to be insisted and proved. Further it has to be considered CRL.A. No.293/2006 6 that during the relevant point of time there was no total prohibition in our State. The quantity involved is only one liter arrack. Then when the quantity of the liquor possessed is below the quantity of Indian made foreign liquor that can be possessed, strict proof required regarding the article seized is as arrack as well as the seizer and analysis. Thus, when the prosecution is mainly relying upon the analysis report to come to a conclusion that it is arrack having a lesser strength, all the circumstances led to the formation of such analysis also should be therein. It is also to be considered that when the charge is under Section 55(a) a conviction under Section 58 of the Abkari Act will not be lie as the ingredients for the same is not proved in this case. Moreover no appeal preferred by the Excise challenging the conviction under Section 58, even though the charge is filed under Section 55(a). Thus, considering the totality of the case, accused can be given benefit of doubt considering all the facts stated above. Thus the appeal allowed and the conviction CRL.A. No.293/2006 7 and sentence hereby set aside and bail bond stand cancelled. Appeal allowed. Sd/- **K.P. JYOTHINDRANATH JUDGE** rmm/9/3/2017 // True Copy // P.A. To Judge