Vijayan @ Maniyan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936 CRL.A.No. 1592 of 2005 (F) ------------------------------AGAINST THE JUDGMENT IN SC 480/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK COURT-I), TRIVANDRUM DATED 27-06-2005 CP 87/2000 of J.M.F.C.-II, ATTINGAL ------ APPELLANT/ACCUSED: ------------------------VIJAYAN @ MANIYAN, S/O. BALAKRISHNAN NADAR, ERATHUVAYAL VEPPIN VILAPUTHEN VEEDU, MANIKKAL, PULLAMPARA VILLAGE THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.M.R.RAJESH RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KEALA. BY PUBLIC PROSECUTOR SRI.K.K.RAJEEV THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** ------------------------------------------------ Crl. Appeal No.1592 of 2005 -----------------------------------------------Dated this the 12[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram, for the offence under Section 55(g) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of 1 lakh and, in default of payment of fine, to₹ undergo rigorous imprisonment for one year. The conviction and sentence so passed by the court below are challenged in 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: PW1, the Excise Preventive Officer, Excise Range Office, Vamanapuram, and his party were on patrol at Manikkal in Crl. Appeal No.1592 of 2005 -2- Pullampara Village at about 12.30 p.m. on 19-08-1997. While so, the appellant was seen coming from the opposite side carrying a 30 litre aluminium vessel on his left shoulder. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the aluminium vessel, 20 litres of wash was found in it. Based on the information passed on by the appellant, one round plank and a plastic tube used for distilling liquor were also found. Since the appellant had committed offences under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P2 Arrest Memo. Ext.P3 is the Intimation of Arrest. PW1 had drawn 500 ml. of wash as sample in a 750 ml. bottle from the bulk contained in the aluminium vessel and sealed that sample bottle. The remaining wash was destroyed. The aluminium vessel, round plank, plastic tube and the sample of wash were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 reached the Excise Crl. Appeal No.1592 of 2005 -3- Range Office, Vamanapuram, with the appellant, properties and the records and entrusted them to the Excise Inspector. Thereafter, Sri.Vijayakumar, the then Excise Inspector of that Range Office, registered Crime No.54 of 1997 of that Range Office. Ext.P4 is the Occurrence Report thus prepared by him. The appellant, properties and the records including the Forwarding Note were produced before the court by him. Ext.P5 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. The investigation of the case had been conducted by PW4, the Excise Inspector, Excise Range Office, Vamanapuram. He had commenced the investigation of the case on 17-05-2000. 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-II, Attingal. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court Crl. Appeal No.1592 of 2005 -4- of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Attingal. Later, the case was made over to the Additional Sessions Court (Adhoc)-I, Thiruvananthapuram. The court below framed a charge against the appellant alleging the offences under Section 55(a) and (g) 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 MOs.1 to 3 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. The defence had not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(g) of the Abkari Act and convicted him thereunder. He was not found guilty of the offence under Section 55(a) of the Abkari Act and hence, he was acquitted of that offence. He was heard on the question of sentence and imposed the sentence on him. Crl. Appeal No.1592 of 2005 -5- 5. The appellant has raised various contentions challenging the conviction and sentence passed against him. The prosecution case is that the appellant was found in possession of 20 litres of wash in a 30 litre aluminium vessel and certain devices used for distilling liquor on 19-08-1997. Hence, he was arrested from the place of occurrence itself by PW1 and the contraband items were seized under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 is the Detecting Officer. PW2, an Excise Guard, accompanied PW1 at the time of detection. Both these witnesses, by and large, supported the prosecution version of occurrence. CWs.9 and 10 were cited as independent occurrence witnesses. They are witnesses to Ext.P1 as well as Ext.P2 Arrest Memo. CW9 could not be examined as he expired. CW10 was examined as PW3. He did not support the prosecution case. He was declared hostile to the prosecution. Whether the evidence of PWs.1 and 2 can be relied on for finding the appellant guilty of the offence under Section 55(g) of the Abkari Act is the Crl. Appeal No.1592 of 2005 -6- question to be considered. 6. It is the prosecution case that the place of occurrence is at Manikkal in Pullampara Village and the appellant was arrested then and there from the place of occurrence itself and the contraband was seized also from him. The prosecution does not have a case that he was arrested at a later point of time from a different place. Ext.P3 is the Intimation of Arrest informing the arrest of the appellant to his elder brother. It is stated in this document that the appellant was arrested from his house, viz., No.III/699. The prosecution did not make any attempt to disown such a statement made in Ext.P3. Ext.P3 had been prepared by PW1. He did not say, while he was in the witness box, that he had committed a mistake in stating that the appellant was arrested from his house as stated in Ext.P3 and, in fact, he was arrested from the place of occurrence itself. Therefore, Ext.P3 renders the case of the prosecution regarding the place of occurrence and arrest of Crl. Appeal No.1592 of 2005 -7- appellant a doubtful one. 7. One more aspect also has to be considered along with this. The Investigating Agency in this case had not prepared a Scene Mahazar. The prosecution did not give any explanation for not preparing a Scene Mahazar in this case. If a Scene Mahazar was prepared in the presence of witnesses which would have been helpful for arriving at a conclusion as to the place of occurrence in this case. But, that was not done. When both these facts are considered together, the doubt generated by Ext.P3 is strengthened persuading the court to reject the prosecution theory of occurrence. 8. The prosecution case is that PW1 had drawn 500 ml. of wash as sample in a 750 ml. bottle from the bulk contained in the aluminium vessel and the sample bottle was sealed. PWs.1 and 2 deposed also that the sample bottle was so sealed. It is reported in Ext.P5 Certificate of Chemical Analysis issued from the Chemical Examiner's Crl. Appeal No.1592 of 2005 -8- Laboratory that ethyl alcohol was detected in the sample and the sample of liquid contained 12.86% by volume of ethyl alcohol. It is also noted in this document that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the sample seal of the seal affixed by the excise official on the sample ? Or was it the sample seal of the court from where the sample was forwarded to the Chemical Examiner's Laboratory? None of the excise officials examined in this case deposed before the court that a sample seal was provided for the purpose of comparison by the Chemical Examiner. The properties including the sample were produced before the court along with a List of Property. But, the prosecution had not tendered that document in evidence. The List of Property so produced is available among the records. In that document, the sample is not described as sealed. Similarly, a copy of the Forwarding Note submitted before the court was also not Crl. Appeal No.1592 of 2005 -9- marked in this case. It is available among the records. Copy of the Forwarding Note shows that a particular column is provided in this document for affixing the sample seal. But, no such sample seal is affixed in the space provided for in this document. A copy of the Forwarding Note produced before the court and kept among the records of the case is for the purpose of proving the contents of the original Forwarding Note. All the entries made in the original Forwarding Note should find a place in the copy also. Since the sample seal is not provided in the copy of the Forwarding Note, it must be presumed that the sample of the seal affixed on the sample of the contraband was not provided in the original Forwarding Note. The Property Clerk or other official who was dealing with the material objects in the court was not examined in order to ascertain these facts. Therefore, these facts lead to the conclusion that there is no proof as to whether a sample seal of the seal affixed on the sample bottle was provided to the Chemical Crl. Appeal No.1592 of 2005 -10- Examiner for comparison. The covering letter attached to the copy of the Forwarding Note shows one more thing. It is specifically stated in it that the sample seal of the court was affixed in the requisition form. Then, naturally, the inference is that the comparison made by the Chemical Examiner can be with the sample seal of the court so provided. Merely comparing the seal of the court affixed on the packet containing the sample with the sample seal of the court will not give any assurance that the sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed by the excise official on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. 9. This Court in **Rajamma v. State of Kerala (2014** Crl. Appeal No.1592 of 2005 -11- ## **(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 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 Crl. Appeal No.1592 of 2005 -12- 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, for these reasons, Ext.P5 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 10. The occurrence in this case, according to the prosecution, was on 19-08-1997. PW4 had conducted the investigation of the case. He had stated that he had commenced the investigation on 17-05-2000. The records produced along with the Final Report show that he had questioned the witnesses on 17-05-2000 and thereafter. Therefore, the inordinate delay occurred in commencing and conducting the investigation is writ large in this case. The prosecution did not offer any valid explanation for occurring such an inordinate delay. PW4, in fact, admitted that he did not know the reason for occurring such a delay. Section 50 Crl. Appeal No.1592 of 2005 -13- of the Abkari Act mandates that every investigation into an 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 concerned Magistrate. This mandate of the statute was ignored by the prosecuting agency in this case. 11. For the foregoing reasons, it is not at all safe to enter a conviction against the appellant for a serious offence under Section 55(g) of the Abkari Act. He, at least, is entitled to the benefit of doubt. Therefore, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to be acquitted of the offence alleged against him. 12. 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(g) of the Abkari Act. He is set at liberty. The bail bond executed by him shall Crl. Appeal No.1592 of 2005 -14- stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks & kns/- //TRUE COPY// P.A. TO JUDGE