Thevar Binoy @ Binoy v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 18TH DAY OF FEBRUARY 2016/29TH MAGHA, 1937 CRL.A.No. 1079 of 2006 --------------------------- AGAINST THE JUDGMENT IN SC 109/2004 of ADDL.SESSIONS COURT (ADHOC)II, THODUPUZHA DATED 00-00-0000 CP 23/2003 of J.F.C.M. COURT,PEERUMEDU ## APPELLANT/ACCUSED: -------------------- THEVAR BINOY @ BINOY, S/O.VARGHESE, PUTHENPURACKAL HOUSE, PATHUMURI BHAGAM, PATHUMURI KARA, KUMILY VILLAGE. BY ADV. SRI.A.C.DEVY RESPONDENT/STATE: -------------------- THE STATE OF KERALA, REP. BY THE SUB INSPECTOR OF POLICE,, KUMILY-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY PUBVLIC PROSECUTORT SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-022016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** = = = == = = = = = = = = = = = = = = Crl. A. No. 1079 of 2006 = = = = = = = = = = = = = = = = = = = Dated this the 18[th] day of February, 2016 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thodupuzha, for the offence under Section 55(g) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo rigorous imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Kumily Police Station, and CRA 1079/2006 2 his party were on patrol at about 4.30 p.m.on 14.8.2002. When they reached Cheeniyappankada, they got information that the appellant was preparing wash for manufacturing arrack in his property at Pathumuri in Kumily village. The police party soon reached that place when the appellant was seen preparing wash in a 200 litre plastic drum. Seeing the police party, the appellant ran away. On examining that plastic drum, it was found that it contained full of wash used for manufacturing arrack. Another 200 litre drum containing full of wash was also found near. In the nearby cattle shed, a 200 litre black plastic tank was found with full of wash. PW5 numbered those plastic drums and tank as S1, S2 and S3. S1 and S2 drums were blue coloured. PW5 has drawn one sample each of wash from those plastic drums and tank in different 750 ml. bottles for the purpose of subjecting them to chemical analysis and sealed and seized them under Ext.P1 Seizure Mahazar. The rest of the wash CRA 1079/2006 3 contained in those drums and tank were destroyed. PW5 also seized S1 and S2 drums and S3 tank as also the aluminium vessel, utensils etc. used for manufacturing arrack under Ext.P1. Thereafter, PW5 and his party reached Kumily Police Station with the properties and the records and registered Crime No. 243 of 2002 of that Police Station. Ext.P7 is the F.I.R. thus drawn by PW5. He has produced the properties and the records before the Judicial First Class Magistrate's Court, Peermedu. Ext.P2 is the Possession Certificate issued by PW2, the Village Officer, Kumily. Ext.P3 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Ernakulam. Ext.P8 is the List of Property. Ext.P9 is a copy of the Forwarding Note. PW5 has conducted the investigation of the case. He has questioned the witnesses and recorded their statements. During the course of investigation, the appellant was arrested by PW5 on 28.8.2002. PW3, the Sub CRA 1079/2006 4 Inspector of Police, Kumily Police Station, continued and completed the investigation and submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thodupuzha. The court below framed a charge against the appellant alleging the offence under Section 55(g) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P9 and MO.1 series to MO.8 series on their side. Ext.D1 was marked on the side of defence through PW2. The appellant was examined under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence has not adduced any CRA 1079/2006 5 evidence except marking Ext.D1 as aforesaid. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(g) 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 in possession of wash, vessel, utensils etc. used for manufacturing arrack at about 4.30 p.m. on 14.8.2002. The appellant ran away from the scene. PW5 seized the contraband and other items under Ext.P1 Seizure Mahazar in the presence of witnesses. But, PW5 has produced those properties before the court only on 5.11.2002 along with Ext.P8 List of Property. Ext.P8 is seen prepared on 28.8.2002. But, it was submitted before the court along with the properties only on 5.11.2002. What was the CRA 1079/2006 6 reason for occurring such an inordinate delay in producing the properties before the court? PW5 has not offered any valid explanation while he was being examined in chief except saying that the properties were under his custody till they were produced before the court. But, during cross examination, he stated that for want of vehicle facility and due to distant location of court, the delay occurred in producing the properties before the court. This answer was given while he was confronted with an inconvenient question. He did not offer such an explanation while he was examined in chief. He has produced some other documents in this case before the court earlier. He has not stated any reason in any of the documents including Ext.P8 produced by him before the court regarding the inordinate delay that occurred in producing the properties before the court. Producing the contraband along with the List of Property before the court is an urgent duty. Such a duty has to be CRA 1079/2006 7 performed without delay. A bald statement made by PW5 during his cross examination as the reason for occurring delay cannot be accepted at all in the facts and circumstances of this case. 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. The explanation thus contemplated is not a mere explanation, but a proper and satisfactory explanation acceptable to the court. In the case on hand, as already found, the explanation offered by PW5 is not proper and satisfactory. The matter does not end there. 6. The properties were produced by PW5 before the court along with Ext.P8 List of Property. Nine items of properties are described in it. Item 1 described are the samples allegedly taken from the bulk of wash found in the possession of the appellant. It can be seen from Ext.P8 CRA 1079/2006 8 that the office of the court has made a submission on 5.11.2002 itself seeking for an order of the learned Magistrate for keeping all the properties produced in safe custody by the Sub Inspector of Police, Kumily. Below that submission, on 6.11.2002, it was endorsed by the learned Magistrate that the properties were returned to the Sub Inspector of Police, Kumily, for safe custody. If that be so, all the properties including the samples were returned to PW5. Then, at what stage of the proceedings those properties including the samples were again produced by PW5 before the court. Whether they were under the safe custody of PW5 or under somebody else. No answer is there. The explanation offered by PW5 during his chief examination is that they were under his custody till they were produced on 5.11.2002. There is no explanation at all regarding the custody of the properties including the samples after they were returned from the court on CRA 1079/2006 9 6.11.2002. In **Narayani v. Excise Inspector(2002(3) KLT 725),** a learned single Judge of this Court observed as follows: “....................... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out................” Therefore, the accused was found to be entitled to the benefit of doubt in that case. In the case on hand also, the appellant is entitled to such a benefit of doubt. 7. It is reported in Ext.P3 Certificate of Chemical analysis that ethyl alcohol was detected in all the samples. It is also stated in this document that the seals on the CRA 1079/2006 10 packet were intact and found to be tallied with the sample seal provided. Whose sample seal was so provided? I have already found that there is no evidence to show the custody of the samples after 6.11.2002. Whether they were under safe custody or not? No answer is there. When they were produced again before the court for sending to the Chemical Examiner? No answer is there. The samples are described not only in Ext.P8 List of Property but also in Ext.P9 copy of the Forwarding Note as sealed bottles and not as packet. A copy of the covering letter of the learned Magistrate addressed to the Joint Chemical Examiner to the Government is seen enclosed with Ext.P9. It is noted in this letter that the sample seal used to affix on the packet was enclosed therewith. In Ext.P3 it is stated that seals on the packet were intact and found to be tallied with the sample seal provided. So, the comparison made by the Chemical Examiner was with the sample seal of the seal affixed on the CRA 1079/2006 11 packet and this statement made in Ext.P3 cannot be understood as a comparison made by the Chemical Examiner of the seal appearing on the sample bottles with the sample seal provided in the Forwarding Note. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW5 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the seals on the samples are compared with the sample seal provided by the Investigating Agency. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. ## 8. 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 CRA 1079/2006 12 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.” A Division Bench of this Court in **Ravi v. State of Kerala (supra)** has held 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 CRA 1079/2006 13 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, in the case on hand, Ext.P3 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 9. PW5, the Detecting Officer as well as the Investigating Officer, deposed in support of the prosecution case. PWs.1 and 4 were cited and examined by the prosecution as independent witnesses for proving their case of occurrence. But, they have not supported the prosecution case. They were declared hostile to the prosecution. Their evidence is of no use for the prosecution for proving their case. It is the defence case that an CRA 1079/2006 14 occurrence as alleged by the prosecution has not taken place at the place and time. There is also dispute with regard to the possession of the property by the appellant where the alleged occurrence has taken place according to the prosecution. The Investigating Agency has not thought it fit to prepare a Scene Mahazar showing the place of occurrence in this case. No explanation has been offered for not preparing a Scene Mahazar. When all these facts are considered, the appellant, at least, is entitled to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence alleged against him. 11. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offence under Section 55(g) of the Abkari CRA 1079/2006 15 Act. He is set at liberty. The bail bond executed by him shall stand cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to him. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH** **JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge