Thulaseedharan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 10TH DAY OF FEBRUARY 2016/21ST MAGHA, 1937 CRL.A.No. 343 of 2006 (F) -----------------------------AGAINST THE JUDGMENT IN SC 96/2005 of ADDL. DIST. & SESSIONS COURT (ADHOC)III, PATHANAMTHITTA DATED 21-12-2005 CP 64/2004 of J.M.F.C., ADOOR ------- APPELLANT/ACCUSED: ------------------------- THULASEEDHARAN, S/O.GOPALAN, BINU BHAVAN, KURAMPALA KARA, KURAMPALA VILLAGE ADOOR TALUK, PATHANAMTHITTA DISTRICT. BY ADV. SRI.C.B.SREEKUMAR RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, ADOOR EXCISE RANGE REPRESENTED BY THE PUBLIC, PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LISHA M.G. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.343 of 2006 -----------------------------------------------Dated this the 10[th] day of February, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-III, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo simple imprisonment for two years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo simple 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: PW4, the Preventive Officer in charge of the Excise Inspector, Excise Range Office, Adoor, and his party were on patrol at Kurampala in Kurampala Village, at about 12.45 Crl. Appeal No.343 of 2006 -2- p.m. on 13-11-2001. While so, the appellant was seen coming from the opposite side carrying a 10 litre black jerrycan in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the jerrycan carried by the appellant, about three litres of arrack was found in it. Since the appellant has committed an offence, he was arrested by PW4 preparing Ext.P4 Arrest Memo. Ext.P5 is the Arrest Notice. PW4 has drawn two samples of 300 ml. each of arrack in two 375 ml. bottles from the bulk contained in the jerrycan. The sample bottles as well as the jerrycan containing arrack were sealed and seized by PW4 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW4 and his party reached the Excise Range Office, Adoor, with the appellant, properties and the records and registered Crime No.66 of 2001 in respect of the occurrence. Ext.P6 is the Crime and Occurrence Report thus prepared by PW4. The appellant, properties and the records were produced before the Judicial First Class Magistrate's Crl. Appeal No.343 of 2006 -3- Court, Adoor. Ext.P7 is the List of Property, Ext.P8 is the Remand Report and Ext.P9 is a copy of the Forwarding Note. Ext.P10 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW5, the Excise Inspector, Excise Range Office, Adoor. He has questioned the witnesses and recorded their statements. He has 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, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Ad hoc)-III, Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P10 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. He denied all the Crl. Appeal No.343 of 2006 -4- incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(1) and (2) 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. It is the prosecution case that appellant was found in possession of M.O.1 jerrycan containing about three litres of arrack at about 12.45 p.m. on 13-11-2001. PW4 arrested the appellant and the contraband was seized then and there. Two samples of 300 ml. each of arrack were taken by PW4 in two 375 ml. bottles from the bulk contained in M.O.1. The samples as well as M.O.1 were sealed by PW4. M.O.1 jerrycan containing arrack and the samples are described as sealed in Ext.P7 List of Property produced before the court. PW4, the Detecting Officer, and PW1, the Preventive Officer claimed to have accompanied PW4, deposed before the Crl. Appeal No.343 of 2006 -5- court that M.O.1 and the samples were sealed. It is reported in Ext.P10 Certificate of Chemical Analysis that ethyl alcohol was detected in the sample. It is also certified in Ext.P10 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW4? Ext.P9 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P9. Whether the sample seal was affixed on the original of Ext.P9 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P9, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the Crl. Appeal No.343 of 2006 -6- form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal was not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample is provided to the Chemical Examiner for comparison. 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 Crl. Appeal No.343 of 2006 -7- seized from the appellant in this case. ## 6. 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 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** **(2011 (3) KLT 353)** 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 Crl. Appeal No.343 of 2006 -8- the hands of the 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.P10 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 7. The alleged occurrence in this case was on 13-11-2001. The investigation was conducted by PW5, the Excise Inspector. It appears that he has assumed the office of the Excise Inspector, Excise Range Office, Adoor, only on 23-06-2003. Thereafter only he has conducted the investigation of the case. He has questioned the witnesses only on 01-02-2004, 02-02-2004 and 03-02-2004. The reason for the delay thus occurred in commencing, conducting and completing the investigation was not explained by him or by any other official witnesses examined in this case. Section Crl. Appeal No.343 of 2006 -9- 50 of the Abkari Act mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. What was the reason? No explanation was forthcoming. 8. Ext.P10 Certificate of Chemical Analysis dated 11-10-2002 had been received by the court on 23-10-2002. The investigating agency in this case should have submitted the Final Report before the court immediately after the receipt of Ext.P10. But, it took more than one year and three months to commence the investigation by PW5 after the receipt of Ext.P10 by the court. After investigation, the Final Report reached the court only on 20-04-2004. The inordinate delay thus occurred in conducting investigation and submitting Final Report before the court is fatal to the prosecution in the facts and circumstances of the case. This Crl. Appeal No.343 of 2006 -10- view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 9. The right to a speedy trial is constitutionally as well as statutorily guaranteed right. The speedy trial includes speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077** ). In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. The independent occurrence witnesses cited and examined in this case have not supported the prosecution version of occurrence. They were declared hostile. The investigating agency has not prepared a Scene Mahazar showing the place of occurrence. When all these facts are considered, this Court is of the view that the appellant is entitled, at least, to the benefit of doubt. 10. For the foregoing reasons, the conviction and sentence passed against the appellant by the court below are liable to be set aside. He is entitled to an order of -11- Crl. Appeal No.343 of 2006 acquittal of the offence alleged against him. 11. In the result, the conviction and sentence passed against the appellant by the court below are set aside. He is acquitted of the offence under Section 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE