Velumpi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **WEDNESDAY, THE 24TH DAY OF FEBRUARY 2016/5TH PHALGUNA, 1937** **CRL.A.No. 2090 of 2004 (B)** **--------------------------AGAINST THE JUDGMENT IN SC 291/2003 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC), FAST TRACK COURT-I, PATHANAMTHITTA DATED 27-11-2004** **APPELLANT(S)/ACCUSED:** **--------------------** **VELUMPI, W/O.RAMAN,** **PALUVELI KUZHIYIL VEEDU, KURAMPALA THEKKEKARA MURI, PANTHALAM VILLAGE, ADOOR TALUK,, PATHANAMTHITTA DISTRICT.** **BY ADV. SRI.C.K.SAJEEV** **RESPONDENT(S):** **--------------** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-02-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2090 of 2004 ---------------------------------------------Dated this the 24[th] day of February, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.291/2003 of Additional District & Sessions Judge (Adhoc), Fast Track Court-I, Pathanamthitta u/s.8(1) and (2) of the Abkari Act. The charge against the appellant is that on 13.8.1999 at 9 a.m., the appellant was found in possession of three litres of arrack in front of Aluvila temple on the Paranthal- Athiramala Panchayat road. The preventive officer intercepted the appellant and seized the arrack and registered a case. After completing investigation, the Excise Inspector, Adoor laid charge before Judicial First Class Magistrate, Adoor, from there the was committed to Sessions Court, Pathanamthitta, subsequently it was made over to Crl. Appeal No.2090/2004 2 Additional Sessions Court (Adhoc), Fast Track Court-1, Pathanamthitta. 2. During trial Prosecution examined PW1 to PW5 and marked Exts.P1 to P7. MO1 was admitted in evidence as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning her. She examined DW1. The learned Additional Sessions Judge convicted the accused and sentenced to rigorous imprisonment for two years and fine of 1 lakh u/s.8(1) and (2) of the Abkari₹ Act, in default of payment of fine, simple imprisonment for two years. Being aggrieved by that, the accused preferred this appeal. 3. The learned counsel appearing for the appellant contended that no forwarding note was prepared by the investigating officer for sending the sample to the chemical examiner's lab. Moreover, the sample seal was not affixed in the label. The learned counsel relied the decision reported in Crl. Appeal No.2090/2004 3 **Krishnan** v. **State** [2015 (2) KLT SN 8 (case No.11)] 4. Heard the learned Public Prosecutor, who admitted that forwarding note was not prepared in this case. 5. The offence was detected by PW1 Preventive Officer, Excise Office, Adoor. His evidence shows that on 13.8.1999 while he was conducting patrol duty and searched in front of the Aluvila temple on the Paranthal Athiramala Panchayat road, the accused was found carrying MO1 and proceeding through the road, on seeing the Excise party, she became perplexed and tried to escape. PW1 intercepted her and inspected MO1 kannas, in which he detected 3 litres of arrack. He tasted the content in it and identified it as arrack. The accused was arrested and contraband articles were seized, after taking sample. The sample and the balance arrack were sealed and thereafter prepared a mahazar. The independent witnesses present there attested Ext.P1 mahazar. Ext.P2 is the arrest memo. PW1 also identified MO1. During 4 Crl. Appeal No.2090/2004 cross examination, PW1 admitted that he affixed label in MO1. But, his seal was not found affixed in Ext.P1. 6. PW2 denied his signature in Exts.P1 and P2. He did not see the seizure of arrack from the possession of the appellant. PW3 supported the evidence of PW1. His evidence shows that he registered a crime and Ext.P4 is the occurrence report. He prepared Ext.P5 property list. The requisition for sending the sample for chemical examination was also forwarded in Ext.P5. The accused was also produced before Court as per Ext.P6 remand application. PW3 also admitted that there was label in MO1. But, he has not stated that he prepared a forwarding note. The Asst. Excise Inspector, Thiruvalla Excise Range conducted investigation in this case. He questioned the witnesses and completed investigation. Ext.P7 is the certificate obtained after chemical examination, in which volume of ethyl alcohol was mentioned as 26.24%. PW5 also supported the evidence of PW1. Even though these Crl. Appeal No.2090/2004 5 witnesses were examined in the trial Court, no evidence has been adduced by the prosecution to show that the seized articles were produced before Court and the same sample was produced before chemical examiner's lab in a tamper proof condition. ## 7. 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. State of Kerala (1993 (2) KLT 550(SC). No Crl. Appeal No.2090/2004 6 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. 8. The appellant examined DW1 in the trial Court and she deposed that the appellant was falsely implicated in a criminal case. Even though such a contention was raised, no supporting evidence has been adduced by the appellant to prove the defence contention. But, in the absence of any evidence with regard to safe custody of the seized article until producing it before chemical examiner's lab in a tamper proof condition, the appellant is entitled to get the benefit of doubt. Appellant was arrested and obtained Ext.P7 chemical 7 Crl. Appeal No.2090/2004 examination report, which itself is not sufficient to convict the appellant u/s.8(1) and (2) of the Abkari Act. ## 9. This Court in **Rajamma** v. **State of Kerala** [2014(1) 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.” 10. The fundamental rule in a criminal case is that one person is presumed as innocent till he is proved to be guilty. This rule actually means that a person accused of a crime is not bound to make a statement or offer any explanation about the circumstances which throws suspicion upon him. It is the duty of the prosecution to prove the guilt beyond reasonable doubt. There may be exception where the rules of Crl. Appeal No.2090/2004 8 presumption applies in certain cases. In such case, a statutory presumption with regard to the proved facts and circumstances may arise which will help in reaching a conclusion about the guilt of the accused. Analysing the evidence, it is found that the prosecution utterly failed to prove the case against the accused. Therefore, the conviction and sentence passed by the trial Court u/s.8(1) and (2) of the Abkari Act are set aside. The accused is acquitted and set at liberty. ## **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.2090/2004 9 Crl. Appeal No.2090/2004 10