Thankappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY, THE 16TH DAY OF NOVEMBER 2018 / 25TH KARTHIKA, 1940** **CRL.A.No. 2284 of 2006** **AGAINST THE CONVICTION AND SENTENCE IN SC 839/2004 of ADDL. SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA DATED 01-11-2006** **APPELLANT/ ACCUSED :** **THANKAPPAN, S/O. KOCHU CHERUKKAN, MUTTICHIRAYIL, KANDALLOORTHEKKUM MURI, KANDALLOOR VILLAGE.** **BY ADV. SRI.R.GOPAN** ## **RESPONDENT/ COMPLAINANT :** **STATE OF KERALA, REPRESENTED BY THE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT.M.N.MAYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.10.2018, THE COURT ON 16.11.2018 PASSED THE FOLLOWING :** **CRL.A.No. 2284 of 2006** 2 ## **JUDGMENT** The appellant was the accused in S.C.No.839/2004 on the files of the Additional Sessions Judge, Fast Track-II, Alappuzha. He was charge sheeted and tried for the offences punishable under Sections 8(1), 8(2) & 55(a) of the Kerala Abkari Act. 2. The allegation is that while the Excise Party was on patrol duty, the appellant was found carrying 2 litres of arrack in a kannas. After evaluating the evidence, the Sessions Court convicted and sentenced the appellant to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh and in default of payment of fine to undergo simple imprisonment for two months under Section 8(1) & 8(2) of the Kerala Abkari Act. No separate sentence was imposed on the accused for the offence under Section 55(a) of the Act and set off under Section 428 of the Cr.P.C.was allowed. 3. The prosecution case is that on 05.02.2003, at 7.30 p.m., while the Excise Party was on patrol duty, in Kandalloorthekku Muri, when they reached near the house of **CRL.A.No. 2284 of 2006** 3 one Ambujakshy, Krishnanilayam, the accused was found transporting 2 litres of arrack for sale in MO1 Can kept in MO2 bag and thereby committed the offences, as alleged. On the side of the prosecution PWs 1 to 4 were examined and Exts.P1 to P7 and MOs 1 and 2 were marked. After trial, the appellant was convicted and sentenced under the above said offence. 4. Highly aggrieved by the conviction and sentence the appellant has approached this Court by stating that the conviction and sentence imposed on the appellant is arbitrary, unsustainable, illegal and liable to be set aside and no independent witness was examined by the prosecution to prove seizure and contemporaneous document Ext.P1 mahazar. The lower court has relied on the solitary evidences of official witness only. No label was affixed on the contraband articles produced before the court. PW1 is the detecting officer, who is the then Excise Preventive Officer. He had deposed that on 05.02.2003, at about 7.20 p.m., he was on patrol duty along the road near Padma theatre in Pullukulangara in Kandalloor vadakku muri, the appellant was found in the light of the jeep coming with a plastic bag on his shoulder. **CRL.A.No. 2284 of 2006** 4 5. On seeing the patrol party, the appellant attempted to run away from the site. Due to sudden action of the patrol party, he was intercepted on the place of occurrence and seized the bag possessed by the appellant and when checked it, MO1 kannas was found kept in the bag. On checking the 2 litres of liquid in the kannas, it was found to be arrack and the witnesses and himself tested the liquid by tasting and smelling and convinced that it was arrack. Then the appellant was arrested from the spot and sample of 200 ml. of arrack was collected in a bottle having the capacity of 375ml. and sealed the same in the presence of witnesses and affixed label containing the signature of the witnesses and himself and he has prepared Ext.P1 mahazar for the occurrence. He has prepared arrest memo and arrest notice as Exts.P2 and P3 and he has identified the appellant as the person, who was arrested by him. He has also identified the kannas as MO1 and bag as MO2. It was brought to the notice of the fact the Can did not contain contraband articles and Ext.P4 report was filed by the Excise Range Inspector stating that the contents in MO1 Can was lost, while it was kept under safe custody in the Excise Range Office. **CRL.A.No. 2284 of 2006** 5 6. According to PW1, he has produced the appellant, records and thondi articles before the Excise Range Office, Kayamkulam. PW2 is another official, who was working as Excise Guard in the Excise Range Office and he has also testified the evidence in consonance with the evidence of PW1. He has also identified MO1 and MO2 produced before the court. PW3 is the Excise Range Inspector, Kayamkulam during the relevant time. Thondi articles were received in the Excise Range Office by the officer, who was on duty and he has taken custody of the appellant, records and thondi articles and registered a case for occurrence as Ext.P5. He has also proved the thondi list as Ext.P6. PW4 was the Excise Range Inspector, Kayamkulam during 2004. He deposed that he has conducted the investigation in this case and after completing investigation, he has laid charge against the appellant before the court and he has also proved the chemical analysis report as Ext.P7. 7. The defence counsel has submitted that the lower court has relied on PW1 and PW2, who are Excise Officials to convict the appellant herein. It is true that PW1 and PW2 are Excise Officials. But they were jointly gone for patrol duty on 05.02.2003 and the offence was detected at 7.20 p.m. Both of **CRL.A.No. 2284 of 2006** 6 them have deposed that MO1 Can contain about 2 litres of arrack. Then the appellant was arrested from the spot itself and collected samples from the arrack and prepared Ext.P1 mahazar. Ext.P2 and P3 are the arrest memo and arrest notice prepared by them. PW2, the Excise Guard, who was present along with the PW1 also corroborated the evidence of PW1 regarding the conducting of patrol duty and detection of the offence. He has also proved that the appellant was arrested on the spot and also identified MO1 and MO2 Can. 8. Ext.P1 is the mahazar prepared after seizure of the MO1 Can. According to PW1, he has detected the offence, arrested the appellant, seized the contraband articles in the presence of independent witness. CWs 2 and 3 are the two independent attesters to the mahazar and witnesses to the occurrence. CW4 was reported that CW3 was not available for examination even after repeated coercive steps issued against him. Non-bailable warrant was issued against him. PW4 is another Excise Official, who has produced the appellant, records and contraband articles along with the samples in the Excise Offce, Kayamkulam. **CRL.A.No. 2284 of 2006** 7 9. It is also proved through PW3 that the appellant and the thondi articles were produced before the court on 06.02.2003 itself. Ext.P6 property list would show that the contraband articles and the sample produced in this case were produced before the court on 06.02.2003. Ext.P7 is the chemical analysis report to prove that the sample collected from the liquid in MO1 Kannas and after examination, it was reported that sample liquid contained 42.28% by volume of ethyl alcohol. It is also proved that the sample was duly taken from MO1 Can and forwarded it through for chemical analysis. The evidence adduced by PW1 is fully corroborated by the evidence adduced by PW2. It is true that the independent witnesses were not examined in this case. PW1 and PW2 were subjected to elaborate cross examination by the learned counsel for the appellant, but nothing was brought out from them to show that they have falsely implicated the appellant in the offence alleged against him. 10. During cross examination, nothing was brought out to prove that PW1 and PW2 have any enmity towards the appellant. It is a defence case that the appellant was falsely implicated in this case by taking him into the custody while he **CRL.A.No. 2284 of 2006** 8 was returning from the ration shop after purchasing kerosene oil as contended by him. No evidence was forthcoming to prove the defence case. At last, the counsel for the appellant has pointed out that the copy of the forwarding note is not produced and marked in this case. 11. In this connection, he has cited a ruling held in _**Viswanadhan v. State of Kerala [2016 (3) KHC 38]**_ wherein it was held that “merely because in chemical analysis report it was mentioned that seal on the bottle was intact and found tallied with the sample seal provided, no inference can be drawn without the specimen seal provided in Court, that the actual seal was used”. 12. Here the specimen seal was not seen produced and marked in evidence. Unless and until the specimen seal is produced, it cannot be found that the sample which was sent for chemical analysis was tamper proof. In the absence of producing the forwarding note or its carbon copy with the specimen seal is fatal to the prosecution case. Accordingly, the appellant is entitled to get the benefit of doubt. So, there is absolutely no evidence produced before this Court that the sample was properly sealed and the specimen seal was not **CRL.A.No. 2284 of 2006** 9 produced before this Court. PW1 has stated that he has prepared Ext.P1 mahazar wherein himself and witnesses were signed and he has stated that he has taken 200 ml.of arrack from the Can and taken in a 375 ml. bottle, sealed and affixed label. 13. No where it is stated that he has obtained the signature of the appellant. PW2 is another material witness also. He deposed that the sample was taken and properly sealed and he has not given any evidence to the effect that the sample bottle contain the signature of the witnesses and PW1 and the appellant. MO1 Can produced before this Court did not contain the label also and the Can was produced with 1.8 litres of arrack. 14. When the prosecution alleges that the appellant was found carrying 2 litres of arrack, then the burden is upon the prosecution to prove that the accused was absented from the place of occurrence along with MO1 Can containing 2 liters of arrack and the Can was properly sealed after taking the sample and affixed a label containing the signature of the witnesses, appellant and the detecting officer. The sample was also contained label and the signature of the witnesses, **CRL.A.No. 2284 of 2006** 10 detecting officer and the appellant. In fact, the prosecution failed to establish that the contraband articles were seized from the possession of the appellant. Over and above, forwarding note or its carbon with specimen seal was not produced and marked in this case. On all these grounds, I find that the prosecution has miserably failed to prove that the contraband articles were seized directly from the appellant. Therefore, the appeal is only to be allowed. In the result this appeal is allowed. The conviction and sentence imposed on the appellant in S.C.No.839/2004 on the file of the Additional Sessions Judge, Fast Track Court-II, Alappuzha is hereby set aside. He is set at liberty forthwith. The bail bond, if any executed, shall stand cancelled. ## Sd/- **ANNIE JOHN, JUDGE** True copy PA to Judge RKM