Venu v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 16TH DAY OF JULY 2014/25TH ASHADHA, 1936 CRL.A.No.44 of 2006 (B) ----------------------------AGAINST THE JUDGMENT IN SC 949/2004 of ADDL. SESSIONS COURT, FAST TRACK III, TRIVANDRUM DATED 24-12-2005 -------- APPELLANT/ACCUSED: ------------------------- VENU, S/O. VISWAMBARAN, KUNNIL VEEDU, PANAVILA, MELULIYAZHTHURA MURI, ULIYAZHTHURA VILLAGE, THIRUVANANTHAPURAM TALUK. BY ADV. SRI.D.AJITHKUMAR RESPONDENTS/COMPLAINANT: ----------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. ## 2. EXCISE INSPECTOR, EXCISE RANGE, KAZHAKUTTAM, THIRUVANANTHAPURAM. BY PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.44 of 2006 -----------------------------------------------Dated this the 16[th] day of July, 2014 ## **JUDGMENT** The appellant was convicted for the offence under Section 55(a) of the Abkari Act by the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram. He was sentenced to undergo simple imprisonment for one year and to pay a fine of 1 lakh and, in default of payment of fine, to undergo₹ simple imprisonment for three months. Challenging the said conviction and sentence, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondents. 3. The prosecution case is briefly stated as follows: PW3, the Excise Inspector, Excise Range Office, Kazhakoottam, and his party were on patrol at Subhash Nagar in Uliyazhthura Village at about 6.00 p.m. on Crl. Appeal No.44 of 2006 -2- 09-08-2003. While so, the appellant was seen coming from the opposite side carrying a yellow plastic cover in his right hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the plastic cover carried by the appellant, two plastic bottles of 750 ml. each containing coloured arrack were found. Since the appellant had committed an offence, he was arrested by PW3 preparing Ext.P3 Arrest Memo in the presence of witnesses. PW3 had taken two samples of 200 ml. each in two 375 ml. bottles. Those samples, the bottles containing arrack and the plastic cover were sealed and labelled and seized by PW3 under Ext.P1 Seizure Mahazar. The sample drawn from the bottle marked as 'A' was marked as 'A1' and the sample drawn from the bottle marked as 'B' was marked as 'B1'. Thereafter, PW3 reached the Excise Range Office, Kazhakkoottam, with the appellant, properties and the records and registered Crime No.39 of 2003 of that Range Office. Ext.P2 is the Crime and Occurrence Report thus prepared by PW3. He had produced the appellant along Crl. Appeal No.44 of 2006 -3- with Remand Report and records before the court. He had also produced the contraband items and the plastic cover along with Ext.P4 list. MO1 series, two in number, are the two bottles seized by PW3 and MO2 is the plastic cover in which MO1 series were kept. PW4, the Excise Inspector, Excise Range Office, Kazhakkoottam, had conducted the investigation of this case. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the Judicial First Class Magistrate's Court-III, Thiruvananthapuram. 4. The learned Magistrate, after complying with the legal requirements, committed the case to the Court of Session, Thiruvananthapuram. Later, it was made over to the Additional Sessions Court (Adhoc)-III, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P5 and MO1 series and MO2 on their side. The appellant was examined Crl. Appeal No.44 of 2006 -4- under Section 313 of Cr.P.C. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) 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 two samples of 200 ml. each of the contraband liquor were drawn by PW3 from the bulk contained in two 750 ml. bottles from the place of occurrence itself and the samples and the two bottles contained the bulk were sealed. PW1, the Excise Preventive Officer, who accompanied PW3 at the time of detection of the offence, stated that the samples were so taken and sealed. PW3 also deposed that the samples were so drawn and sealed. Ext.P4 list describing the particulars of properties produced shows that the samples were noted as 'Item-3' in this document. But, that item is totally scored off. Crl. Appeal No.44 of 2006 -5- It is seen from this scored off entry that the samples were not described as sealed. It is also the prosecution case that two 750 ml. plastic bottles containing rest of the contraband after drawing the samples were also sealed. PWs.1 and 3 stated also that they were so sealed. Those two 750 ml. plastic bottles containing coloured arrack were produced before the court describing them as 'Item-1' in Ext.P4. But, 'Item-1' is not described as sealed. PW3 stated before the court that samples were drawn at the place of occurrence and those samples were produced by him before the court. But, as directed from the court not to produce the samples, the entry made in Ext.P4 regarding the samples was scored off. But, PW3 admitted that nowhere it is stated that it was directed from the court not to produce the samples. PW4, the Investigating Officer, admitted that he had not investigated about the sample bottles noted in Ext.P1 Seizure Mahazar. 6. Whether the samples claimed to have been taken from the place of occurrence were actually produced before Crl. Appeal No.44 of 2006 -6- the court? PW3 was the officer who had produced the appellant, records and the contraband items before the court. He had stated that, as directed from the court not to produce the samples, the description of samples in Ext.P4 was scored off. That means, according to him, he had not produced the samples before the court. Whether at any subsequent point of time the samples were produced before the court? There is absolutely no evidence answering the same. Therefore, the facts and circumstances related to the samples throw a shadow of doubt on the prosecution case. 7. Along with this, another aspect also has to be considered. I have already adverted to the fact that the description of the properties made in Ext.P4 does not show that the samples or the bulk contained in 750 ml. bottles were sealed even though they were described as sealed in Ext.P1 Seizure Mahazar. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples and the samples contained 36.72% and Crl. Appeal No.44 of 2006 -7- 37.27% by volume of ethyl alcohol. It is also noted in Ext.P5 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was it? The sample of the seal claimed to have been affixed on the samples at the place of occurrence does not find a place in Ext.P1. PW3, during cross examination, claimed that his personal seal had been affixed on the samples. None of the excise officials examined in this case stated that the sample seal was provided for comparison by the Chemical Examiner. The case pleaded by PW4 during cross examination was that in the light of the crime number noted, the sample could be identified. He had no case that the sample could be identified by the sample seal provided. Even though not marked, a copy of the Forwarding Note is available among the records of the case. It is seen reached the court on 10-08-2003. It is signed by PW3. Column No.10 in this document is provided as a space for affixing sample seal. No such sample seal is seen affixed in this document. This copy must be the true copy of the Forwarding Note sent to the Crl. Appeal No.44 of 2006 -8- Chemical Examiner. Therefore, the comparison made by the Chemical Examiner may be with the seal affixed from the court from where it was forwarded to that Laboratory. There is absolutely no assurance that the seal on the samples was compared with the sample of the seal. In the peculiar facts and circumstances of this case, in order to prove the fact that a sample seal was provided for comparison, the property clerk of the court should have been examined. But, that was not done in this case. In short, such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the samples taken from the bulk allegedly seized from the appellant in this case. ## 8. 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 Crl. Appeal No.44 of 2006 -9- 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 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, Ext.P5 Certificate of Chemical Analysis is Crl. Appeal No.44 of 2006 -10- rendered a doubtful one entitling the appellant to benefit of doubt. 9. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offence under Section 55(a) of the Abkari Act. 10. 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 55(a) 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** ks & kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.44 of 2006 -11-