Vettukallel Thomas v. State of Kerala and Excise Range Officer, Sreekandapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 CRL.A NO. 196 OF 2014** **AGAINST THE JUDGMENT DATED 27.1.2014 IN SC 43/2012 OF COURT OF SESSION, THALASSERY** ## **APPELLANT/ACCUSED:** VETTUKALLEL THOMAS, S/O.JOHN KALLIYAD AMSOM, PARANTHALAD BY ADV SRI.C.K.SREEJITH ## **RESPONDENTS/STATE & COMPLAINANT:** 1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 EXCISE RANGE OFFICER SREEKANDAPURAM, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SR. PUBLIC PROSECUTOR SRI.DENNY DEVASSY THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal.No.196/2014 2 ## _**A. BADHARUDEEN, J.**_ ================================ _Crl.Appeal No.196 of 2014_ ================================ _Dated this the 21[st] day of June, 2022_ ## _**J U D G M E N T**_ This appeal arises out of judgment in S.C.No.43/2012 dated 27.01.2014 on the file of Court of Session, Thalassery. Accused is the appellant. State of Kerala and the Excise Range Officer, Sreekandapuram are the respondents. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor appearing for the respondents. 3. Facts of this case: According to the prosecution, the accused/appellant herein was found in possession of 3 litres of illicit arrack on 09.06.2010 at about 6.30 p.m on the road near to his house in Padiyoor Crl.Appeal.No.196/2014 3 panchayat. He was nabbed red-handedly and crime was registered alleging commission of offence under Section 8 (1) r/w 8(2) of the Abkari Act and investigated. 4. Thereafter final report was filed before the Judicial First Class Magistrate Court-II, Kannur and the case was committed to the Court of Sessions. The Sessions Court after following the procedure, framed charges alleging commission of the said offence and went on trial.During trial, PW1 to PW4 were examined and Exts.P1 to P9 were marked on the side of the prosecution. Thereafter, the accused was questioned under Section 313 of Cr.P.C and the incriminating circumstances found in evidence were explained to him and the accused denied the said circumstances. Though he was given opportunity to adduce evidence, no defence evidence adduced. 6. On appreciation of the evidence, the Sessions Court found that the accused was guilty for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act and in consequence thereof Crl.Appeal.No.196/2014 4 after hearing all concerned, he was convicted and sentenced as under: _“Accused is sentenced u/s 235(2) Cr.P.C for the offence punishable u/s 8(1) r/w 8(2) of the Abkari Act to undergo R.I for a period of three months and to pay a fine of Rs.1,00,000/- (Rupees One lakh only). In default of payment of fine, the accused shall undergo S.I for a period of three months. The period of detention if any undergone by the accused in the case will be set off u/s 428 Cr.P.C.”_ 7. While impeaching the veracity of the judgment of conviction, the learned counsel for the appellant would argue that the independent witness PW2, who had put his signature in Ext.P2 mahazar, turned hostile to the prosecution and PW1, who prepared Ext.P3 report also given inconsistent statements during evidence. That apart, the evidence available does not suggest that the contraband was taken from the custody of the accused in a tamper proof condition and produced the same before the court on the date itself and later produced before the chemical examiner in a tamper proof condition. On the above grounds, the learned counsel pressed for setting aside the conviction and sentence. Crl.Appeal.No.196/2014 5 8. The learned Public Prosecutor supported the conviction and sentence. 9. In this matter, PW1, who had prepared Ext.P3 crime and occurrence report in relation to the occurrence on 09/06/2010, had generally given evidence in support of the prosecution. He stated that he had detected the crime and collected sample of the contraband on recovery of the same. He also stated that he had arrested accused and arrest memo got marked as Ext.P1. Ext.P2 is the mahazar prepared in connection with the recovery and Ext.P3 is the occurrence report. Arrest intimation got marked as Ext.P4. Ext.P5, property list and Ext.P7, copy of forwarding note, got marked through PW1. During cross examination, PW1 given evidence that the contraband was kept at the property room of the police station. On perusal of Ext.P5 property list, it is noticed that the same was prepared on 10.06.2010, though the contraband was taken into custody on 09/06/2010. Ext.P6 is a forwarding note. No date is shown in Ext.P6. Ext.P7 is the inventory of articles Crl.Appeal.No.196/2014 6 seized in this crime under Section 53A of the Kerala Abkari Act. The same is seen prepared on 15.06.2010, ie., 6 days after the occurrence. 10. In the decision reported in [2021 (5) KHC 347 : 2021 KLD 483 : 2021 .. KHC online 595 : 2021 (5) KLT 321 : 2021 (4) KLJ 222], _**Vijayan @ Puthoor Vijayan v. State of Kerala**_ , this Court, after discussing the earlier decisions regarding the mandate of collection and forwarding of contraband in cases under Abkari Act, held as under: _“13._ _**Steps to be followed by the officer collecting the sample** :_ _(i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;_ _(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;_ _(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;_ _(iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison;_ Crl.Appeal.No.196/2014 7 _(v) The said officer shall depose about compliance of the above before the court while giving evidence._ ## _14._ _**Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:**_ _(i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court;_ _(ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note;_ _(iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical Examiner;_ _(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;_ _(v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove._ _15._ _**Measures to be ensured by the Chemical Examiner** :_ _(i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;_ _(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C.”_ Crl.Appeal.No.196/2014 8 In this case, Thondy Clerk also was not examined as held in the above decision to prove custody of the contraband in court and forwarding of the same in a tamper proof condition. 11. Going by the records Exts.P5 and P6, it is crystal clear that in this matter, the materials available are insufficient to hold that the contraband was collected and forwarded to the forensic science laboratory in a tamper proof condition, as laid down in the above decision. 12. Apart from that, PW2 though admitted his signature in Ext.P2 mahazar, did not support the prosecution and he was declared hostile. PW3, Village Officer attached to Kalliad Village Office, was examined and scene plan prepared by him got marked as Ext.P8, which has no much significance. Similarly, PW4, who recorded the statements of witness Nos.1 to 4 also given evidence in support of the prosecution and it was through him, Ext.P9 chemical examination report showing presence of alcohol in the sample forwarded was proved. Crl.Appeal.No.196/2014 9 13. Overall appreciation of the evidence would lead to the conclusion that the prosecution case is not free from doubts, to enter into conviction in view of the evidence discussed in tune with the decision highlighted. Thus the accused is entitled to the benefit of doubt and therefore he is liable to be acquitted. 14. In the result, this appeal is allowed. The conviction and sentence shall stand set aside. The appellant accused is released forthwith and the bail bond shall stand cancelled. Fine amount, if any, deposited by the appellant, shall be refunded to the appellant in accordance with law, if applied for. _Sd/-_ ## _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_