Thulaseedharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **MONDAY, THE 15TH DAY OF FEBRUARY 2016/26TH MAGHA, 1937** **CRL.A.No. 171 of 2004 (C)** **--------------------------** **AGAINST THE JUDGMENT IN SC 142/1999 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-II, KOLLAM DATED 14-01-2004** **APPELLANT(S)/ACCUSED NO.1:** **------------------------THULASEEDHARAN, S/O. DIVAKARAN, MEENATHERI VEEDU, KADATHOOR WARD, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY.** **BY ADVS. SRI.T.GOPALAKRISHNAN SRI.K.V.AJAI KUMAR SRI.CHARLES VARGHESE** **RESPONDENT(S)/COMPLAINANT: -------------------------STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.171 of 2004 ---------------------------------------------Dated this the 15[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.142/1999 of Additional District & Sessions Judge (Adhoc) II, Kollam u/s.55(a) of the Abkari Act. The charge against the appellant is that on 17.6.1997 at 2 p.m., he was found in possession of 7800ml of illicit arrack (53 polythene bags each containing 150ml) in the tea shop of 1st accused bearing building No.KP.XIII/105(2) of Kadathoor muri, Kulesekharapuram village. The 1st accused was arrested by the Excise Inspector and the contraband articles were seized after preparing a mahazar. The 2nd accused is the owner of the building. Reaching at the Excise Office, he registered a crime and after completing investigation, the Excise Inspector, Karunagappally laid charge Crl.Appeal No.171/2004 2 before Judicial First Class Magistrate, Karunagappally from there the case was committed to Sessions Court, Kollam. Subsequently, it was made over to Additional Sessions JudgeII,Kollam. The 2nd accused died during trial and the charge against him was abated. 2. In the trial Court, prosecution examined PW1 to PW4 and marked Exts.P1 to P7 as documentary evidence. MO1 was admitted as material object. During cross examination of PW1, Ext.D1 was marked. The incriminating circumstances brought out in evidence were denied by the accused while questioning him u/s.313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the accused. Being aggrieved by that, the 1st accused preferred this appeal. 3. The learned counsel appearing for the appellant contended that no forwarding note was prepared in this case at the time of producing the sample before Court. As per Ext.P7, 150ml sample packet was received in the chemical Crl.Appeal No.171/2004 3 examination lab. But, the evidence in Ext.P2 and P6 shows that only 130ml of arrack was seized from the house of the appellant. When there is no evidence to prove that 150ml was forwarded to chemical examiner's lab, it is presumed that the sample taken at the time of seizure was not reached before Court and therefore, the accused is entitled to get the benefit of doubt. I have heard the learned Public Prosecutor also. 4. No procedure in taking samples from the seized contraband articles was mentioned in the Abkari Act. But, in the Kerala Abkari Shops Disposal Rules 2002 a procedure is provided under Chapter VII. While taking sample by an abkari officer for chemical analysis (toddy or foreign liquor), he shall follow the procedure under Rule 8 (2)(a) to (i) of the Kerala Abkari Shop Disposal Rules 2007. The bottles or containers shall be secretly fastened with suitable cork so as to make it leak proof to prevent any spillage. But in the Abkari Manual a procedure is provided but those rules are not fully complied in this case. This Court in **Rajamma** v. **State of Kerala** [2014(1) Crl.Appeal No.171/2004 4 ## KLT 506] held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55 (a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.” Therefore, seizure of arrack by the Excise Officials itself is not sufficient to show that the accused committed the aforesaid offence. 5. The occurrence was stated by PW1. His evidence shows that while he was the Circle Inspector, Anti Narcotic Special Squad, Excise Enforcement, Kollam, he got information that the appellant was in possession of arrack in his tea shop. Immediately he arrived at the place of occurrence after preparing Ext.P1 search memorandum and searched the tea shop and detected 53 packets of arrack each containing 150ml. Crl.Appeal No.171/2004 5 The 1st accused was arrested. He opened one packet and realised it as arrack. The contraband articles were seized after preparing a mahazar and the balance packets were sealed. The accused and the witnesses present there affixed their signature in the packet. It was marked as MO1. For that, he prepared Ext.P2 mahazar. The independent witnesses present there also attested Ext.P2 mahazar. Ext.P3 is the search list. Ext.P4 is the arrest memo. During cross examination, he admitted that he took 130ml as sample. In Exts.P2 and P6 also, it is stated that 130ml was taken as sample. But, in Ext.P7 chemical examination report, it is stated that 150ml was received in the lab for chemical examination. This is a major infirmity with regard to the sealing of the seized articles. 5. PW2 supported the evidence of PW1. He also gave a similar version given by PW1. PW3 conducted investigation in this case. PW1 produced the accused and contraband articles before Excise Office on the basis of that, he registered a Crl.Appeal No.171/2004 6 crime and Ext.P5 is the crime and occurrence report. The sample was produced before Court as per Ext.P6 property list, which was examined in the chemical examiner's lab and obtained Ext.P7 report. PW4 attested Ext.P3 search list. He identified the signature in Exts.P2 and P3 and the label in MO1. Even though PW4 put his signature in Ext.P2, prosecution has not explained the reason for change in the quantity of sample contained in Ext.P7. A Division Bench of this Court in **Ravi** v. ## **State of Kerala** [2011 (3) KLT 353] held as follows: 13. It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. 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 Crl.Appeal No.171/2004 7 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 (2) 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 PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant. 14. The conviction recorded and the sentence passed by the court below, overlooking the above vital aspects of the matter, cannot be sustained. The appellant is accordingly found not guilty of the offence punishable under Section 55(a) of the Abkari Act and is acquitted thereunder. THE appellant is set at liberty forthwith. THE above Crl. Appeal is allowed as above.” There is no guarantee that the seized articles were properly received in the chemical examiner's lab in a tamper proof condition. It is stated in Exts.P2 and P6 that the quantity sent for chemical examination was 130ml. But, as per Ext.P7 report, the quantity received in the chemical examination lab was 150ml. If that be the position, the prosecution utterly failed to prove that the sample taken was reached in the hands of Crl.Appeal No.171/2004 8 the chemical examination without any change in the quantity. Hence, a conviction is not maintainable on the basis of Ext.P7 chemical analysis report. In the result, the conviction and sentence passed by the Additional District & Sessions Judge (Adhoc) II, Kollam u/s.55(a) of the Abkari Act are set aside. The appellant is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl.Appeal No.171/2004 9