Vasu alias Bhaskaran v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **CRL.A.No.2505 OF 2007** **AGAINST THE JUDGMENT IN SC 626/2004 DATED 27-11-2007 OF ADDITIONAL SESSN.COURT (ADHOC-II)KASARAGOD IN CP 4/2004 DATED 23-06-2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD** **APPELLANT/S:** **VASU @ BHASKARAN AGED 36 YEARS S/O.KRISHNAN, BANJARATHAUKA, UDAYAGIRI, NEERCHAL VILLAGE,, KASARAGOD DISTRICT.** **BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH** **RESPONDENT/S:** **STATE- REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV. SRI D. CHANDRASENAN, SR. P.P.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2020, THE COURT ON 10-07-2020 DELIVERED THE FOLLOWING:** Crl. Appeal No. 2505 of 2007 -2- ## **J U D G M E N T** This is an appeal preferred under Section 374 (2) of the Criminal Procedure Code challenging the legality and correctness of the finding of conviction arrived at against the 2[nd] accused in S.C. 626 of 2004 of the Additional Sessions Court (Ad-hoc II), Kasaragod. That case was taken on file on the basis of the final report laid in Crime and Occurrence Report No. 64/99 of the Excise Range Office, Kasaragod which was registered on 29.12.1999 alleging offence punishable under Sections 55(a) and 64A of the Abkari Act. The allegation in brief is that on 29.12.1999 at 09.30 a.m., while the Excise Inspector and party were engaged in checking vehicles on the Cherkala - Bediadka State Highway, at Chedikkanam they intercepted auto rickshaw KL-14-B1796 driven by the 1[st] accused and travelled by the 2[nd] accused on the rear seat; on stopping the vehicle, both the driver and the passenger tried to run away; but they were stopped and when the vehicle was examined, two bags were found placed on the platform of the auto rickshaw, each containing 500 packets of liquid. When three such packets were opened and verified in the presence of other members of Crl. Appeal No. 2505 of 2007 -3- the Excise party and independent witnesses, they realised that it is Karnataka made illicit arrack. Thousand packets, each containing 100 ml was found in the two bags. After seizing the items and the auto rickshaw both the driver and the passenger were arrested, the crime was registered and the accused and the contraband were produced before court on the same day. On completion of investigation the charge sheet was laid before the Judicial First Class Magistrate, Kasaragod where the case was taken on file as C.P. No. 4 of 2004. Later when committed, the case was made over to the trial court. 2. The third accused is the owner of the auto rickshaw. After hearing counsel on both sides, when the charge was framed, read over and explained, the accused persons pleaded not guilty and claimed to be tried. The prosecution evidence consisted of the oral evidence of PW1 to PW6, Exts. P1 to P7 documents and material objects, identified and marked as M.Os 1 and 2. On completion of evidence when the accused were examined under Section 313 Cr.P.C., they denied all incriminating materials and reiterated their innocence. Accused 1 and 2 pleaded that they have no connection whatsoever with the contraband. They also maintained that the items were not Crl. Appeal No. 2505 of 2007 -4- seized from them. The 3[rd] accused wanted to convince the court that the auto rickshaw does not belong to him. As there was no ground for acquittal under Section 232 CrPC, the accused were called upon to enter on their defence; however no evidence was adduced from their side. After hearing counsel on both sides, the learned Sessions Judge found accused Nos. 1 and 3 not guilty and they were acquitted. The second accused was found guilty under Section 55(a) of the Abkari Act and was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs. 1,00,000/-, in default simple imprisonment for six months. That finding against the 2[nd] accused is called in question in this appeal. 3. After admitting the appeal, by order dated 19.12.2017 this Court suspended the sentence and granted bail to the appellant on his executing a bond for Rs. 50,000/- with two solvent sureties each for the like amount to the satisfaction of the trial court. 4. I heard the learned counsel for the appellant and also the learned Public Prosecutor for the respondent State. Even though numerous grounds are urged in support of the appeal, when heard, the Crl. Appeal No. 2505 of 2007 -5- learned counsel has confined to three arguments. Firstly he said that even though it is claimed that sample of the seized items were sent for chemical examination and the report was obtained, from Ext. P5 forwarding note it is quite patent that it does not bear the sample seal of the office or the investigating officer which is very fatal to the prosecution. In support of the contention he has placed reliance on the decisions reported in **Prakashan and another** _**v**_ **. State of Kerala [2016 KHC 96], Gireesh @ Manoj** _**v**_ **. State of Kerala [2019 KHC 655], Vikraman** _**v**_ **. State of Kerala [2018 KHC 3177]** and also **Ravi** _**v.**_ **State – S.I. of Police, Meppadi [2018 (5) KHC 352]** . Secondly he argued that there is inordinate delay in investigating the matter and filing the charge sheet. Even though the alleged occurrence was on 29.12.1999, investigation was done only in 2002, that reason for the delay is not explained. To buttress this contention he has placed reliance on **Chandran @ Chandrashekaharan** _**v**_ **. State [2016 (5) KHC 650]** . 5. Thirdly, he contended that from Ext. P1 seizure mahazar and also the oral testimony of witnesses, it is quite patent that both the accused 1 and 2 who had travelled together in the auto rickshaw had Crl. Appeal No. 2505 of 2007 -6- shared common intention, but the trial court found that the driver of the auto rickshaw was not in conscious possession of the contraband. But it is certain from the mahazar and statement of the witnesses that, on being stopped, both of them had tried to get away from the vehicle; still benefit was given only to the 1[st] accused driver which is incorrect. According to the learned counsel, the very same benefit should have been given to the appellant also. The learned counsel also pointed out that the information regarding the arrest was not passed to the near relatives as provided under the directives of the Hon'ble Supreme Court. Thus he pleaded for acquitting the appellant. 6. On the other hand, the learned Public Prosecutor pointed out that the appellant is depending largely on technical aspects, that there are convincing materials to show that the appellant was in conscious possession of 1,000 packets of illicit arrack which is an act attracting offence punishable under Section 55(a) of the Abkari Act. The alleged delay was due to change of officers which has not caused any prejudice to the appellant. 7. After going through the materials on record and the arguments Crl. Appeal No. 2505 of 2007 -7- of the learned counsel, I have no doubt that there is evidence to show that on 29.12.1999 at 09:30 a.m. PW2 Excise Inspector and party had intercepted the vehicle travelled by the appellant and some articles were seized from him under the Ext. P1 seizure mahazar. The appellant along with the 1[st] accused and the material objects were produced before the court on the very day and both were remanded to judicial custody. Later investigation was taken over by PW5 who conducted investigation long after in 2002. After completing the investigation the charge sheet was laid before the jurisdictional Magistrate on 05.08.2003 where the case was taken on file as C. P. 4 of 2003 and then the case was committed to the Court of Session and thus the matter came before the trial court. The oral testimony of PW1, the independent witness and that of Excise officials, PWs 2 and 3 suggest that the appellant and another were intercepted and some articles were seized from them. But the question remains to be considered is whether the prosecution could prove the allegation against the appellant that he was found possessing and transporting liquor. 8. In my assessment the first two arguments of the learned Crl. Appeal No. 2505 of 2007 -8- counsel are really formidable. It is shown that PW2, the detecting officer himself had prepared the Ext. P5 forwarding note requesting to send the samples collected from the seized items for chemical examination report. But the Ext. P5 does not bear sample seal of the Excise Officer. Even though the Ext. P7 certificate of chemical analysis No. 3943 dated 25.12.2000 in respect of crime No. 64/99 of Kasaragod Excise Range was reportedly received by the Joint Chemical Examiner with seals on the bottle intact, tallying with the sample seal provided, the sample seal is not available in court. It can be argued that once the Chemical Examiner has certified that the items had reached him with seals on the bottle intact tallying the sample seal provided, it is not necessary to go behind. But, here the defence disputes the preposition. As rightly pointed out by this Court in **Krishnan H. v. State [2015 (1) KHC 822]** and other decisions quoted by the learned counsel, when dispute has been raised by the accused doubting the genuineness of the claim of the prosecution, it is for the prosecution to clear the same. In Krishnan's case, it was held that if the sample seal is not appearing in the copy of the forwarding note, it has to be presumed, unless otherwise proved, that such a seal was not Crl. Appeal No. 2505 of 2007 -9- affixed on the original forwarding note as well. It is a rebuttable presumption which could have been rebutted by the prosecution by bringing up the original forwarding note from the chemical examination laboratory and proving the same. That has not been done. 9. Here it has been pointed out that when PW3 the Excise Inspector who claimed to have prepared the forwarding note was specifically questioned about the same. He admitted before court that the Ext. P5 does not bear the sample seal. It was also suggested that the sample seal was not affixed on the forwarding note, which he denied. When that question was put and such an answer was elicited from the detecting officer, it was incumbent on the prosecution to call for the original forwarding note and prove, for the purpose of rebutting the presumption, that the original document bore the sample seal. 10. This position has been reiterated by this Court in a recent decision reported in **Balachandran v. State of Kerala [2020 (3) KHC 697]** . This Court has held that there is a purpose in affixing the seal in the forwarding note; if the specimen seal is not affixed in the Crl. Appeal No. 2505 of 2007 -10- forwarding note, prosecution cannot succeed because the link starting from the seizure till it reaches the hands of the analyst cannot be established. 11. Such a lacuna in the hands of the prosecuting agency goes to the very root of the matter. It is through the chemical analysis that the offence get confirmed. If only it is proved that the appellant was found transporting excess quantity of liquor, offence under Section 55(a) of the Abkari Act will come out. Since doubts have been cast on the finding of the chemical examination report the prosecution is bound to fail. 12. There is also substance in the argument that there was inordinate delay in the investigation of the case. Even though the incident had happened on 29.12.1999 a final report was filed only on 05.08.2003. It is a matter of common knowledge that in the nature of the offence alleged, once the offensive articles get seized following the procedural formalities and produced before court, major part of investigation is over. What remains is recording the statement of witnesses, obtaining the chemical examination report etc. Even Crl. Appeal No. 2505 of 2007 -11- assuming that getting report from the chemical examination laboratory may take time, the investigating agency need not wait till the receipt of the report to form the opinion on the complicity of the accused and to lay the charge sheet. Ext. P7 indicates that it was issued on 25.12.2000. Still more than one and a half year was taken to lay the final report. Thus nearly 2½ years taken in filing the charge sheet is exorbitant which cannot be countenanced. 13. Even though the other arguments are not convincing, the above stated reasons are sufficient to give the appellant the benefit of doubt. In my opinion, the first aspect, that is the absence of seal on the forwarding note alone is sufficient to dislodge the prosecution. In that view, the appellant is entitled to get the benefit of doubt. To sum up, in reversal of the order of conviction, the appeal is allowed and the appellant stands acquitted, cancelling his bail bond. Portions of fine, if any realised, shall be refunded. **Sd/K. HARIPAL, JUDGE** Eb/07.07.2020 ///TRUE COPY/// P. A. TO JUDGE