Vijayakumari v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 15TH DAY OF MARCH 2016/25TH PHALGUNA, 1937 CRL.A.No. 1263 of 2006 --------------------------AGAINST THE JUDGMENT IN SC 609/2001 of ADDL. S.C. -TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED 27-06-2006 CP 227/2000 of J.M.F.C.-II, NEYYATTINKARA ------ APPELLANT/ACCUSED.1: --------------------------- VIJAYAKUMARI, D/O.THAMARAKSHY, POOTAKKUZHI VEEDU, ARAYOOR DESOM, CHENKAL VILLAGE, NEYYATTINKARA TALUK. BY ADVS. SRI.T.A.UNNIKRISHNAN SRI.K.SATHEESH KUMAR SMT.RESHMI POULOSE RESPONDENT/COMPLAINANT.: ---------------------------------- THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR MS.LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1263 of 2006 -----------------------------------------------Dated this the 15[th] day of March, 2016 ## **JUDGMENT** 1. kThe appellant was convicted by the Additional Sessions Court for the trial of Abkari Cases, Neyyattinkara, for the offence under Section 58 of the Abkari Act. She was sentenced to undergo rigorous imprisonment for two years and to pay a fine of 1 lakh and, in default of payment of₹ fine, to undergo rigorous imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal. 2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent. 3. The prosecution case is briefly stated as follows: PW3, the Preventive Officer, Excise Circle Office, Neyyattinkara, and his party were on patrol at Aarayoor in Chenkal Village at about 1.00 p.m. on 29-07-1997. While so, Crl. Appeal No.1263 of 2006 -2- the appellant was seen coming from the opposite side carrying a 10 litre jerrycan in her right hand. Entertaining a doubt, the excise party went to her and stopped her there. On examining the jerrycan, full of arrack was found in it. Since she had committed an offence under the Abkari Act, she was arrested by PW3 preparing Ext.P2 Arrest Memo. The jerrycan containing arrack was sealed and seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 and his party reached the Excise Circle Office, Neyyattinkara, with the appellant, contraband and the records. They were handed over to PW4, the Excise Inspector, Excise Range Office, Amaravila. PW4 registered Crime No.104 of 1997 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus drawn by PW4. He had produced the appellant, contraband, and the records before the Judicial First Class Magistrate's Court-II, Neyyattinkara. Ext.P4 is the List of Property. Ext.P5 is the Remand Report. Ext.P6 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory, Crl. Appeal No.1263 of 2006 -3- Thiruvananthapuram. PW4 conducted the investigation of the case. He had questioned the witnesses and recorded their statements. Later, the investigation was continued by PW5, the Excise Inspector, Excise Range Office, Amaravila. He had questioned the witnesses and recorded their statements. After completing the investigation, he had submitted the Final Report before the court. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Neyyattinkara. Later, the case was made over to the Additional Sessions Court for the trial of Abkari Cases, Neyyattinkara. 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 6 and marked Exts.P1 to P7 and M.O.1 on their side. The appellant was examined under Section 313 of Cr.P.C. She denied all the incriminating circumstances shown Crl. Appeal No.1263 of 2006 -4- against her. She maintained that she was innocent of the allegations levelled against her. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 58 of the Abkari Act and convicted her thereunder. She was heard on the question of sentence and imposed the sentence on her. 5. The appellant has raised various contentions challenging the conviction and sentence passed against her. It is the case of the prosecution that the appellant was found in possession of 10 litres of arrack at about 1.00 p.m. on 29-07-1997 and PW3 arrested her then and there and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. The contraband was produced before the court along with Ext.P4 List of Property. It can be seen from this document that the property was so produced before the court on 29-07-1997. The office made a submission before the learned Magistrate for ordering to keep the property in the Excise Range Office until further Crl. Appeal No.1263 of 2006 -5- orders. That submission was allowed by the Magistrate on 30-07-1997. Ext.P7 is the Extract from the Property Register of the court having the entries in respect of the property produced in this case. It can be seen from the entries made in Ext.P7 that the property was ordered to be kept in the Excise Range Office, Amaravila, and it was, accordingly, received for keeping in the Excise Range Office. However, the dates noted with regard to these aspects in this document are varying from the dates noted in Ext.P4 List of Property. But, one thing is certain. The property produced before the court by PW4 was returned to the Excise Range Office, Amaravila, and, accordingly, it was taken back. 6. Ext.P6 Certificate of Chemical Analysis shows that ethyl alcohol was detected in the sample. Admittedly, the Detecting Officer had not drawn a sample of the contraband at the time of detecting the offence. But the prosecution case is that PW4 had submitted a requisition before the court for taking sample for the purpose of subjecting the same to chemical analysis. A copy of the requisition so Crl. Appeal No.1263 of 2006 -6- claimed to have been submitted is not marked in this case. Such a requisition or copy of the same is not available among the records. PW3, the Detecting Officer, deposed before the court that he had affixed the sample of the seal affixed on the jerrycan containing arrack in the Chemical Examination Form (presumably the requisition claimed to have been submitted by PW4) in the presence of witnesses. According to PW4, he had submitted a requisition requesting for taking sample for analysis. He had no case that such a requisition submitted by him contained the sample seal of the seal affixed on the jerrycan containing arrack. If the sample of the contraband was taken from the court based on requisition, there is no chance for affixing the sample seal of the seal claimed to have been affixed on the jerrycan in the requisition form. Naturally, the seal which can be affixed on the sample bottle will be one affixed from the court and a sample seal of that seal will be provided to the Chemical Examiner. Now the question is whether the sample of the contraband was really taken from the contraband produced Crl. Appeal No.1263 of 2006 -7- in this case. 7. Going by the entries made in Exts.P4 and P7, the submission made by the office of the court and the order issued by the learned Magistrate were for returning the contraband produced as such to the Excise Office and not after taking the sample. If that be so, the entire contraband produced as property before the court would have been returned to the Excise Office. Where and under whose custody the same was kept till it was returned to the court? When it was returned to the court for taking sample? No answers are there for these questions. An entry is made in Ext.P7 that the sample of the contraband was received, presumably, by some excise official on 18-08-1997. When such a sample was taken from the court? PW6 was the property clerk in the Judicial First Class Magistrate's Court-II, Neyyattinkara, at the relevant time. She claimed that she had received the property in this case on 29-07-1997. She also deposed that she had made the entries in Ext.P7. She further stated that she had taken the sample of the property Crl. Appeal No.1263 of 2006 -8- in this case as per the orders of the Magistrate. When she had taken that sample? Apart from the bald statement made by PW6, no entry is seen made either in Ext.P7 or in Ext.P4 that she had drawn the sample of the contraband on a particular day. Whether the contraband was available with her for taking sample on a day prior to 18-08-1997 after its initial receipt on 29-07-1997? No evidence is there. There is no evidence as to whether the contraband was kept under safe custody or not. In these circumstances, this Court is of the considered view that it is an impossibility to conclude that the sample sent to the Chemical Examiner for comparison was really the sample taken from the contraband allegedly seized from the appellant. 8. It is worthwhile to refer to certain pronouncements of this Court in relation to similar facts obtained in this case. In **Narayani v. Excise Inspector (2002 (3) KLT 725)** , a learned Single Judge of this Court observed as follows: - “.......... In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Crl. Appeal No.1263 of 2006 -9- Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ..........” Therefore, the accused was found to be entitled to the benefit of doubt in that case. 9. 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 tamperproof 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.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. Crl. Appeal No.1263 of 2006 -10- 10. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows: “ **50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-** (1) Every investigation into the offence under this Act shall be completed without unnecessary delay. (2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with subsection (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974).” This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. No explanation was also offered for happening so. The alleged Crl. Appeal No.1263 of 2006 -11- occurrence in this case was on 29-07-1997. PW5, the Investigating Officer, admitted that he had questioned two witnesses only on 13-03-2000 and 14-03-2000, i.e., about three years after the alleged detection of the offence. Therefore, it is quite evident that there was inordinate delay in conducting the investigation of the case. 11. Ext.P6 Certificate of Chemical Analysis dated 24-03-1998 had been received by the court on 27-04-1998. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P6. But, the investigating agency had taken more than two years for submitting the Final Report before the court after the receipt of Ext.P6 by the court. The Final Report was filed only on 15-05-2000. This inordinate delay in conducting investigation and submitting Final Report before the court, in the facts and circumstances, is fatal to the prosecution case. This view is strengthened by the decision of this Court in **Surendran v. State of Kerala (2013 (3) KHC 780)** . 12. The right to a speedy trial is constitutionally as well Crl. Appeal No.1263 of 2006 -12- as statutorily guaranteed right. The speedy trial includes speedy investigation also. (See **Pankaj Kumar v. State of Maharashtra (AIR 2008 SC 3077** ). In the case on hand, such a right to speedy trial has been infringed by the inordinate delay that occurred in conducting the investigation of the case and submitting the Final Report before the court. The investigating agency had not prepared a Scene Mahazar in this case. None of the Investigating Officers explained the reason why the Scene Mahazar was not prepared in this case. The defence case is one of total denial of arrest and seizure of the contraband from the place and at the time claimed by the prosecution. In such a circumstance, the non-preparation of a Scene Mahazar assumes some significance. One of the independent witnesses cited for proving the prosecution version of occurrence was examined as PW1. He has not supported the prosecution case. He was declared hostile to the prosecution. When all the facts adverted to in this judgment are considered, this Court is of the view that it is unsafe to Crl. Appeal No.1263 of 2006 -13- enter a conviction against the appellant for a serious offence under Section 58 of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt. 13. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. She is entitled to an order of acquittal of the offence under Section 58 of the Abkari Act. 14. In the result, the conviction and sentence passed by the court below against the appellant are set aside. She is acquitted of the offence under Section 58 of the Abkari Act. She is set at liberty. The bail bond executed by her shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- //TRUE COPY// P.A. TO JUDGE Crl. Appeal No.1263 of 2006 -14-