Vijayan, S/o. George v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 20TH DAY OF OCTOBER 2020 / 28TH ASWINA, 1942** ## **CRL.A.No.1509 OF 2007** **AGAINST THE JUDGMENT IN SC 676/2001 DATED 27-06-2007 OF ADDITIONAL SESSIONS COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **CP 236/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS-II, NEYYATTINKARA** ## **APPELLANT/ACCUSED:** **VIJAYAN,S/O. GEORGE, PADIPPURAVILA VEEDU, VATTAVILA, CHENKAL VILLAGE, THIRUVANANTHAPURAM DISTRICT.** **BY ADV. SRI.M.SREEKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY PUBLIC PROSECUTOR SRI.D. CHANDRASEKHAR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19-10-2020, THE COURT ON 20-10-2020 DELIVERED THE FOLLOWING:** Crl.A.1509/2007 :2: ## **JUDGMENT** Appellant is the convict in S.C.No.676/2001 on the files of the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara, who faced trial for offence punishable under Section 58 of the Abkari Act. The precise allegation against the appellant is that on 06.10.1998 at 11.30 AM the CW1 Excise Preventive Officer and party found him moving through the Udiyankulangara-Vattavila road, in Chenkal village and desom in Neyyattinkara taluk, carrying about 2 litres of arrack in a jerrycan. Seeing the Excise party the appellant tried to make a retreat, he was suddenly intercepted, content of the can was tested by smelling and tasting, after making sure in the presence of independent witnesses that it was illicit arrack. The contraband was seized under a mahazar, he was arrested and produced before the Excise Inspector, following which Crime No.43/98 of Excise Range, Amaravila was registered. It is further stated that he was produced before the court on the same day along with the contraband and was remanded to judicial custody. On conclusion of investigation, a charge sheet was laid alleging offence punishable Crl.A.1509/2007 :3: under Section 8(1) of the Abkari Act before the Judicial First Class Magistrate-II, Neyyattinkara. After completing the procedural formalities, the case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the trial court. 2. The appellant was defended by a counsel of his choice. After hearing counsel on both sides, when the charge alleging offence punishable under Section 58 of the Abkari Act was read over and explained in Malayalam, he pleaded not guilty. He was on bail. 3. On the side of the prosecution, seven witnesses were examined as PWs 1 to 7. Exts.P1 to P9 were also marked. The material object was identified and marked as MO1. On completion of prosecution evidence, when examined under Section 313(1)(b) Cr.P.C., he denied the incriminating evidence and reiterated his innocence. As it was not a case to be acquitted under Section 232 Cr.P.C., the court called upon him to enter on his evidence in defence. There was no evidence for him. After hearing counsel on both sides, by the impugned judgment, the learned Sessions Judge found him guilty of offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a Crl.A.1509/2007 :4: fine of Rs.1 lakh, in default, to undergo rigorous imprisonment for three months. That finding is now called in question under Section 374 of the Cr.P.C. 4. I heard the learned counsel on both sides. The trial court records were also perused. 5. The learned counsel for the appellant raised three arguments canvassing reversal of the finding. According to her, sample for obtaining chemical examination report was taken from the court on 26.11.1998, after 1½ months of the alleged incident, which is illegal. Secondly, the forwarding note does not contain the seal of the court. She also argued that there are serious inconsistencies in the version of witnesses, that independent witnesses have not supported the prosecution case. 6. The incident had happened in front of the Rakshasathyam church on the Udiyankulangara-Vattavila road in Chenkal village and desom in Neyyattinkara taluk. Going by the prosecution allegation, while the Excise party headed by CW1 Robert, Preventive Officer was moving through the road, engaged in patrol duty, they came across the appellant who was moving with a jerrycan; when he tried to retreat, Crl.A.1509/2007 :5: was intercepted and the content of the can was tested; finding that it was illicit arrack, the appellant was arrested and the contraband was seized under Ext.P1 mahazar. CW1 the Preventive Officer is no more. PWs 1 and 2 independent witnesses, though admitted their signatures in the Ext.P1 mahazar turned hostile to the prosecution, as usual. PW3 Mohanraj the Excise Guard, who was in the party, supported the prosecution case and gave a version in conformity with the allegations in the charge sheet. PW4 Sivarajan was the Excise Inspector before whom the appellant was produced after arrest along with the contraband. He registered the crime and produced the appellant and the contraband before court on the same day. He also proved Exts.P5 to P8 documents. PW5 N.Subramaniyan is the successor Excise Inspector who conducted investigation. PW6 is a clerk in the Judicial First Class Magistrate Court, Neyyattinkara, who took sample and sent the same for chemical examination report through Excise Guard Ratnakaran. PW7 is the said Ratnakaran. 7. This being the summary of prosecution evidence, the contentions raised in support of the appeal can be considered. Firstly, it is the definite case of the appellant that sample was drawn from the Crl.A.1509/2007 :6: court, which is illegal. From Ext.P1 mahazar it is quite certain that the CW1 the Preventive Officer, who had detected the crime, seized the contraband and arrested the appellant, did not collect any sample from the place of detection. The entire contraband was transmitted to the court on the same day along with Ext.P7 thondi list. It seems that PW6 the thondi clerk was cited and examined specifically for the purpose of filling up the lacuna occurred in the prosecution case. Through PW7 the prosecution wanted to say that the item was in a tamper-free condition and was produced before the Chemical Examination Laboratory, that in Ext.P8 report it has come out that the seal was intact. When this irregularity was brought to the notice of the trial court, the learned Judge ruled out the same basing on a decision of this Court in **Sathi v. State of Kerala [2007 (1) ILR 718]** . But it remains a fact that the sample was taken by PW6. Even though he spoke in tune with the prosecution version, there is nothing on record to say that everything was done on the basis of a judicial order. Secondly, it is the consistent stand of this Court that taking such sample, etc. for the purpose of obtaining chemical examination report is the realm of the prosecuting agency, that court has no business to assist them in the Crl.A.1509/2007 :7: matter. (See the decisions reported in _Rajan v. State of Kerala [2013 (3) KLT 654]_ and _Smithesh v. State of Kerala [2019 (2) KLT 974])._ The failure of the prosecuting agency in collecting sample from the spot itself is suspicious. Moreover, there is nothing on record to say that sample was taken by the thondi clerk as authorised under a judicial order. 8. The second contention that the forwarding note marked as Ext.P4 does not bear the sample seal also is formidable. As consistently held by this Court in numerous decisions, in the absence of sample seal, which was reportedly found on the forwarding note, it cannot be stated conclusively that the very same sample was tested for issuing the report under reference. This position has been reiterated in the recent decision in **Sadasivan @ Para v. State of Kerala and another [2020 KHC 478]** . As rightly pointed out, the Ext.P4 forwarding note does not bear the seal of the investigating officer or the detecting officer. As noticed earlier, the sample was collected from the court so that chances of putting such a seal are remote also. 9. Even though I did not notice any serious inconsistency in the material evidence of prosecution witnesses, since the two matters Crl.A.1509/2007 :8: stated above are really serious and capable of doubting the substratum of the prosecution case. From the above it could be doubted whether the sample of the item allegedly seized from the possession of the appellant itself was subjected to examination in the Chemical Laboratory for getting the Ext.P8 report. The benefit of such a doubt should necessarily go to the appellant. 10. In the above view, even though Section 58 of the Abkari Act was not the appropriate provision of law which should have been invoked by the court in the alleged facts, it can be concluded that the prosecution could not bring home the guilt of the appellant beyond reasonable doubt. Granting the benefit of doubt and in reversal of the finding of guilt and conviction, the appellant is found not guilty and acquitted under Section 386(b)(i) of the Cr.P.C. He shall be set at liberty. Fine amount, if any, realised shall be refunded. The appeal is allowed as above. Sd/- ## **K.HARIPAL JUDGE** //True copy// P.S. to Judge okb/19.10.2020