Vijayan s/o Velayudhan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH WEDNESDAY, THE 18TH DAY OF JUNE 2014/28TH JYAISHTA, 1936 CRL.A.No. 499 of 2004 (B) -----------------------------AGAINST THE JUDGMENT IN SC 334/2002 of III ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT NO.I, THRISSUR DATED 23-02-2004 -------- APPELLANT/ACCUSED: -------------------------- VIJAYAN S/O. VELAYUDHAN, KARIPATHARA HOUSE, MELOOR VILLAGE, PUSHPAGIRI. BY ADVS. SRI.JOHN NUMPELI (JUNIOR) SRI.P.V.PAULSON RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18-06-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.499 of 2004 -----------------------------------------------Dated this the 18[th] day of June, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Thrissur, for the offences under Sections 55(i) and 58 of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year each and to pay a fine of ₹ 1 lakh each and, in default of payment of fine, to undergo rigorous imprisonment for three months each for the offences under Sections 55(i) and 58 of the Abkari Act. The substantive sentence was directed to run concurrently. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant submits that the appellant expired after filing this appeal. The report of the concerned Sub Inspector of Police and the Death Certificate produced along with the same confirmed the death of the appellant on 11-03-2010. Crl. Appeal No.499 of 2004 -2- 3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case. 4. The prosecution case is briefly stated as follows: PW5, the Sub Inspector of Police, Koratty, and his party were on patrol at about 10.00 a.m. on 15-10-2000 at Pushpagiri in Meloor Village. While so, PW5 got reliable information that the appellant was selling illicit arrack on the northern bund of the irrigation canal at Pushpagiri. Therefore, PW5 and his party left for that place and reached there by 10.15 a.m. when the appellant was seen standing carrying a jerrycan of 10 litre size in his right hand and a glass tumbler in his left hand. Seeing the police party, the appellant attempted to flee away leaving the jerrycan and the glass. But, the police party stopped him there. On examination, it was found that the jerrycan contained about eight litres of illicit arrack. Crl. Appeal No.499 of 2004 -3- Therefore, the appellant was arrested by PW5. Ext.P2 is the Arrest Memo prepared by PW5 in the presence of witnesses. Ext.P9 is a notice of arrest served on the wife of the appellant. PW5 has drawn three samples of 180 ml. each of arrack in three bottles from the bulk and the samples as well as the bulk were sealed and seized them and the glass tumbler at 10.45 a.m. under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW1 went to Koratty Police Station with the appellant and the properties and registered Crime No.273 of 2000 of that Police Station. Ext.P4 is the F.I.R. thus drawn by PW5. He has produced the appellant, contraband with the samples and the records before the court. He has conducted the investigation. He has questioned the witnesses and recorded their statements. PW4 has completed the investigation of the case and submitted the Final Report before the Judicial First Class Magistrate's Court, Chalakkudy. 5. The learned Magistrate committed the case to the Court of Session, Thrissur, and, from there, it was made over Crl. Appeal No.499 of 2004 -4- to the Principal Assistant Sessions Court, Irinjalakkuda. Later, it was transferred to the Additional Sessions Court (Adhoc)-I, Thrissur. 6. The court below framed a charge against the appellant alleging the offences under Sections 55(i) and 58 of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution has examined PWs.1 to 5 and marked Exts.P1 to P9 and M.Os.1 and 2 on their side. The appellant was questioned under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(i) and 58 of the Abkari Act and convicted him thereunder and, after hearing him on the question of sentence, imposed the sentence on him. 7. The appellant has raised several contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the contraband liquor Crl. Appeal No.499 of 2004 -5- was seized by PW5 under Ext.P1 Seizure Mahazar at 10.45 a.m. on 15-10-2000 and produced the same along with three samples before the Magistrate on that day itself. Ext.P6 is the List of Property. Along with this document, the properties were produced before the Magistrate. A direction issued by the learned Magistrate on 15-10-2000 is seen on Ext.P6. The direction so issued was for producing the properties before the regular court. As could be seen from Ext.P5 Remand Report, the appellant was produced at the residence of the learned Magistrate on 15-10-2000. Ext.P6 and some other records were also produced along with Ext.P5. The direction issued by the learned Magistrate on Ext.P6 was to produce the properties before the regular court. But, that direction is seen not complied with. Because, thereafter, the properties had been produced before the court only on 23-10-2000 as could be seen from Ext.P6 itself. The office of the court made a submission before the Magistrate on 23-10-2000 stating that as there was no space in the property room, the properties, except the samples, may be entrusted to the Crl. Appeal No.499 of 2004 -6- Station House Officer, Koratty, for safe custody until further orders. The learned Magistrate allowed that submission by writing 'Yes'. As per the direction of the learned Magistrate issued on 15-10-2000, the properties were to be produced before the court, normally, on the next working day namely, 16-10-2000. But, it was produced only on 23-10-2000. What was the reason for the delay occurred in producing the properties after 15-10-2000? 8. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** laid down that there should be explanation for the delay when there is delayed production of the property. In this case, PW5 did not offer any explanation for such delay occurred in the production of properties after 15-10-2000 before the court. This unexplained inordinate delay in reaching the contraband before the court, in the circumstances of the case, is fatal to the prosecution case. 9. Where the contraband items were kept after they were returned from the court on 15-10-2000? Under whose Crl. Appeal No.499 of 2004 -7- custody they were kept during that period? No explanations were offered by the prosecution for the same. The prosecution has a duty to explain under whose custody and where the properties were kept before they were produced before the court. In **Narayani v. Excise Inspector (2002** **(3) KLT 725)** , a learned 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 Court on 13-09-1998 (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, in that case, the accused was found to be entitled to the benefit of doubt. In the case on hand, the Excise Officials who were examined had no case that the contraband was with any of them during that period. Therefore, following the decision in **Narayani (supra)** , the appellant in this case is also entitled to the benefit of doubt. Crl. Appeal No.499 of 2004 -8- 10. It is the case of the prosecution that PW5 has seized about eight litres of illicit arrack from the appellant at 10.45 a.m. on 15-10-2000. Three samples of 180 ml. each of illicit arrack were drawn in three bottles from the bulk by PW5. The fact that the samples were sealed by PW5 is specifically noted in Ext.P1 Seizure Mahazar. Ext.P6 List of Property also shows that the samples produced before the court were sealed. PW5, the Detecting Officer, stated before the court that the samples were sealed. He further clarified that the seal so affixed was that of the Station House Officer. That means, the seal so affixed was that of PW5. Ext.P8 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in all the three samples. 11. It is noted in Ext.P8 that the seals on the bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? None of the Excise Officials examined in this case had a case that a sample seal of the seal affixed on the samples was provided for Crl. Appeal No.499 of 2004 -9- comparison. No Forwarding Note has been marked in this case. The records available in this case do not show a copy of the Forwarding Note. The seal affixed on the samples was that of the Station House Officer namely, PW5. The prosecution did not show by adducing evidence that the sample of such a seal affixed on the samples was provided along with the samples sent to the Chemical Examiner. The official witnesses examined in this case do not have a case that the sample seal of the seal of the Station House Officer namely, PW5 was given for comparison to the Chemical Examiner. In these circumstances, there is no assurance that the samples subjected to chemical analysis were really the samples of the contraband allegedly seized from the appellant. Such an assurance is possible only when the sample seal of the Station House Officer which was affixed on the samples 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 samples taken from the bulk allegedly Crl. Appeal No.499 of 2004 -10- seized from the appellant in this case. ## 12. 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 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.” The Division Bench of this Court in **Ravi (supra)** has held that the prosecution can succeed only if it is shown that the contraband liquor which is allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a Crl. Appeal No.499 of 2004 -11- 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, no sanctity can be attached to Ext.P8 Certificate of Chemical Analysis. For the reasons already stated, the appellant is entitled to the benefit of doubt. The conviction and sentence passed against the appellant are liable to be set aside. In the result, the conviction and sentence passed against the appellant by the court below are set aside. The bail bond executed by the appellant shall remain cancelled. The amount, if any, deposited by the appellant as directed by this Court shall be returned to the legal heirs of the appellant. No further orders are required in this appeal. Sd/- **BABU MATHEW P. JOSEPH JUDGE** kns/- Crl. Appeal No.499 of 2004 -12- ## //TRUE COPY// P.A. TO JUDGE