Thulasi S/O Sukumaran and Manchu Saji S/O Appu v State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE T.R.RAVI** **TUESDAY, THE 16TH DAY OF MARCH 2021 / 25TH PHALGUNA, 1942** ## **CRL.A.No.752 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1050/2005 DATED 28-02-2008 OF ADDITIONAL SESSIONS COURT, FAST TRACK III, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **1 THULASI S/O.SUKUMARAN, VAYALTHITTA VEEDU, KUZHIYAM, PERUMKUZHY DESOM, AZHOOR VILLAGE. 2 MANCHU SAJI S/O. APPU, VAYALTHITTA VEEDU, KUZHIYAM, PERUMKUZHY DESOM, AZHOOR VILLAGE. BY ADV. SRI.M.DINESH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SMT. SYLAJA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.752 OF 2008** **2** ## **JUDGMENT** **Dated this the 16th day of March 2021** **The accused in S.C.No.1050/2005 on the file of the Additional Sessions Court, Fast Track III, Thiruvananthapuram have filed this appeal challenging the judgment dated 28.02.2008, whereby they have been found guilty of offence under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for one year each and to pay a fine of 1,00,000/- each and in default of₹ payment of fine to undergo imprisonment for a further period of 3 months each.** **2. The case of the prosecution is that on 01.12.2004 at about 5.00 p.m., while PW4 and party were on patrol duty, they received reliable information that the accused were selling arrack at Kuzhiyam. On the basis of the information, they proceeded to the spot and found that the accused** **CRL.A.No.752 OF 2008** **3** **were holding black jerry cans. Accused were apprehended and it was found that the jerry cans were filled with arrack. The contraband articles were seized, the accused were arrested, a mahazar was prepared and on reaching the Police Station, PW4 registered a crime against the accused. Before the court below, PW1 to PW5 were examined and Exts.P1 to P9 were marked. MO1 series were identified and marked. On the basis of the evidence on record, the court below found the accused guilty of offences charged against them and imposed on them the sentence referred above.** **3. Heard Sri.Dinesh M., learned counsel for the appellants and Smt.Sylaja, learned Public Prosecutor on behalf of the State.** **4. The counsel for the appellants pointed out several discrepancies in the case put forward by the prosecution. Firstly, it is contended that the very same officer who detected the offence had arrested the accused, registered the crime,** **CRL.A.No.752 OF 2008** **4** **conducted the investigation and laid the charge, which the counsel submits is not the correct procedure that has to be followed. It is pointed out that under Section 38 of the Abkari Act, on detection of every breach of the provisions of Abkari Act, an Abkari officer has to give information of the offence to his immediate superior officer or to an Abkari Inspector which is a mandatory provision and that since this procedure has not been followed, the prosecution has to fail. The counsel relies on the decision of this Court in** _**Suresh Babu V. State of Kerala [2017 (4) KHC 693]**_ **. Secondly, the counsel submits that it is seen from the property list, which is produced as Ext.P7, that the thondi articles were produced before the court on 02.12.2004, the next day after the alleged offence. He points out that after production of the thondi articles, the same were returned with direction to keep it at the Police Station until further orders. The endorsement in Ext.P7 shows** **CRL.A.No.752 OF 2008** **5** **that the above contention is justified. It can thus be seen that no sample was collected at the scene of occurrence nor was it collected at the time of production of the articles on 02.12.2004 before the Magistrate. Counsel submits that going by Ext.P8 forwarding note, the sample was sent for chemical examination only on 24.12.2004 and apparently the thondi articles were in the Police Station during the interregnum. There is no evidence tendered regarding the safe custody of the thondi articles in the Police station by any of the witnesses which is fatal for the prosecution case (See** _**Anilkumar v. State of Kerala and anr. (2020 (4) KHC 172)**_ **. At the same time, the thondi clerk has been examined as PW5. She has stated in the chief examination that she had, on direction by the Magistrate, verified the thondi articles and entered the details in thondi mahazar. She has further stated that 180 ml was taken as sample in 2 bottles from the cans produced and the same were** **CRL.A.No.752 OF 2008** **6** **sent for chemical examination. The date on which the sample was taken and the procedure that is followed for taking the sample is not mentioned. Admittedly, on 02.12.2004 itself the articles had been returned for keeping in the Police Station. There is no evidence regarding the day on which the articles were brought back to the court for enabling the Thondi Clerk to collect the sample. It is also not stated whether the sample was collected on 02.12.2004 itself and only the balance have been returned for custody in the Police Station. Without any such details, it is not possible to conclude that the prosecution has proved beyond any reasonable doubt that sampling was done in accordance with law. It is also relevant that there is absolutely no evidence regarding the safe custody in the Police Station. Another aspect that is pointed out is that Ext.P8, which purports to be the forwarding note, does not bear any date or any signature with date by the** **CRL.A.No.752 OF 2008** **7** **Magistrate. It is also pointed out that the seal that has been affixed on the document is a wax seal without any inscription. A covering letter which has been attached to the forwarding note shows the date of despatch as 24.12.2004. But there is no date written below the initial of the Judicial First Class Magistrate. Counsel for the appellant submits that the forwarding note does not give any indication as to the date on which the sample was handed over to the Police Officer for sending to the Chemical Examiner.** **5. I find considerable force in the contentions raised by the counsel for the appellant. It has been held by this Court that under Section 38 of the Abkari Act, the detecting officer has to give information about the crime to the superior officer, which admittedly has not been done in this case. So also, there is nothing in evidence to show that the sample was collected from the thondi articles by the Thondi Clerk on the** **CRL.A.No.752 OF 2008** **8** **basis of specific instruction and the manner in which such sample was collected by the thondi clerk and the date and time on which such sample if any collected was entrusted with the Police Officer for forwarding to the Chemical Examiner. So also, there is nothing to prove the safe custody of the thondi articles in the Police Station since nobody has been examined as witnesses on such aspects. It has been held by this Court in** _**Majeedkutty V. The Excise Inspector, Kollam Range (2015 (1) KLT 624)**_ **that absence of tendering evidence regarding the aspects referred above is fatal for the prosecution. It is also well settled that if the sample is sent for chemical examination after affixing a seal, the sample seal has to be forwarded for comparison to the Chemical Examiner. It is also to be noted that the forwarding note does not bear a seal with a description and only wax has been affixed on the forwarding note. Such a seal will not be sufficient for any verification** **CRL.A.No.752 OF 2008** **9** **and it can create all possibilities for tampering with the articles.** **6. In the light of the settled legal position and in the facts of this case, the appellants are entitled to succeed in this appeal.** **In the result, the judgment of the Additional Sessions Court, Fast Track III, Thiruvananthapuram in S.C.No.1050/2005 dated 28.02.2008 is set aside. The appellants are acquitted and set at liberty. Bail bonds, if any, executed by the appellants or on their behalf are cancelled. The appeal is allowed.** **Sd/-** **T.R.RAVI, JUDGE** **Pn**