Vasudeva Kurup v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 8TH DAY OF JANUARY 2016/18TH POUSHA, 1937** **CRL.A.No. 1668 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 300/2001 of ADDITIONAL DISTRICT & SESSIONS (ADHOC)COURT-1, PATHANAMTHITTA DATED 20-09-2004** **APPELLANT(S)/ACCUSED.:** **----------------------VASUDEVA KURUP, S/O.CHELLAPPA KURUP, KALLUMPURATHU VEEDU, THENGAMAM KARA, PALLICKAL VILLAGE ADOOR TALUK.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.M.RAFIQ** **RESPONDENT(S)/COMPLAINANT.:** **-----------------------------** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. N. SURESH.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.1668 of 2004 ---------------------------------------------Dated this the 8[th] day of January, 2016 ## **ORDER** This appeal is preferred against the conviction and sentence in S.C.No.300/2001 of the Additional Sessions Judge, Pathanamthitta u/s.8 of the Abkari Act. The charge against the accused is that on 9.7.1998 at 5.30 p.m. the Excise Inspector, Adoor was conducting patrol duty, at that time, the accused was found walking through the road infront of Raj Cashew Factory in Thengamom Muri of Pallicakal Village and carrying a black kannas. During inspection, it was revealed as arrack. He was arrested and the contraband article was seized, after preparing mahazar. After completing investigation, the Excise Inspector , Adoor Crl.Appeal No.1668/2004 2 Range laid charge before Judicial First Class Magistrate Court, Adoor from there it was committed to Sessions Court for trial. 2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P6. The material object MO1 was marked in the trial Court. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional District & Sessions Judge convicted the accused u/s.8 of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of 1lakh with a default sentence of two years simple₹ imprisonment. Being aggrieved by that, he preferred this appeal. 3. Heard both sides. The learned counsel appearing for the appellant contended that there was no proper sampling at the time of seizure. No evidence has been Crl.Appeal No.1668/2004 3 adduced by the prosecution to show that the sample was drawn after producing it before Court. When there is no proper sampling, the appellant is entitled to get the benefit of doubt and the learned counsel relied the decision reported in **Sathi** v. **State of Kerala** [2007(1) ILR 718]. 4. The prosecution examined PW1, who is the Excise Inspector attached to Excise Circle Office, Adoor. The evidence of PW1 shows that on 9.7.98 while he was conducting patrol duty, he arrived at the place of occurrence, at that time the appellant was found carrying a black kannas and on seeing the Excise party, he tried to ran away. They intercepted him and inspected the kannas and detected three litres of arrack in it. He arrested the appellant and seized the contraband article, after preparing Ext.P1 mahazar. Ext.P2 is the arrest memo. MO1 is the kannas seized by PW1. He affixed proper label 4 Crl.Appeal No.1668/2004 in it and produced before C.I. of Police, who is the Range Inspector. PW2, the Preventive Officer, who accompanied PW1 deposed the same version stated by PW1. Analysing the evidence of PW1 and PW2, it is clear that the arrack was taken into custody, after preparing Ext.P1 mahazar, subsequenlty, it was produced before Excise Circle Office. 5. For ascertaining the facts stated by PW1, the independent witnesses were examined in the trial Court. PW3 deposed that he attested Ext.P1 mahazar. PW4 also deposed that PW1 produced MO1 and the accused and Ext.P1 mahazar. On the basis of that, he registered crime 32/98. Ext.P3 is the occurrence report. He prepared Ext.P4 property list and produced before Court. The accused was produced as per Ext.P5 remand application. He deposed that the sample was taken by the Judicial First Class Magistrate. Even though he deposed so, who had taken the sample was not cleared in his investigation Crl.Appeal No.1668/2004 5 report. PW5 completed investigation and laid charge before Court. Ext.P7 is the chemical analysis report, which shows that 25.24 percentage of volume alcohol was in the sample. Even though Ext.P7 was marked in the trial Court, no documents were produced in the trial Court to show that proper sample was taken by the investigating agency. 6. 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 tamperproof condition. (Vide - State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. Crl.Appeal No.1668/2004 6 State of Kerala (1993 (2) KLT 550(SC). No 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 ourt 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.” 7. When prosecution failed to establish that they had drawn sample, which was produced before Court and forwarded to the chemical examiner through court, it is their responsibility to prove that fact by adducing convincing evidence. The fact that who had taken sample Crl.Appeal No.1668/2004 7 from the court was not disclosed in the investigation report. None of the witnesses from the Court was also examined to prove that fact. When prosecution failed to adduce such evidence, the accused is entitled to get the benefit of doubt. In the absence of satisfactory evidence with regard to taking sampling, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the trial Court u/s.8 of the Abkari Act are set aside and the accused is acquitted thereunder and set at liberty. Crl.Appeal is allowed. ## **P.D. RAJAN, JUDGE.** acd Crl.Appeal No.1668/2004 8 Crl.Appeal No.1668/2004 9