Viswanathan Pillai v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH THURSDAY, THE 21ST DAY OF AUGUST 2014/30TH SRAVANA, 1936 CRL.A.No. 1867 of 2005 (A) --------------------------- AGAINST THE JUDGMENT IN SC 507/2004 of ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK COURT - I, PATHANAMTHITTA DATED 27-09-2005 APPELLANT/ACCUSED: SRI.VISWANATHAN PILLAI, S/O.JANARDHANAN UNNITHAN, VELLAYIL VEEDU THENGAMOM MURI, PALLICKAL VILLAGE, ADOOR TALUK. BY ADV. SRI.S.HARIKRISHNAN RESPONDENTS/COMPLAINANT: 1. STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. THE EXCISE INSPECTOR, ADOOR. BY PUBLIC PROSECUTOR SMT. SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** **= = = == = = = = = = = = = = = = = = Crl.A.No. 1867 of 2005** **= = = = = = = = = = = = = = = = = = = Dated this the 21[st] day of August, 2014** ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court(Adhoc)-I, Pathanamthitta, for the offence under Section 8(1) and (2) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for two years. 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 respondents. 2 CRL.A. 1867/2005 3. The prosecution case is briefly stated as follows: PW1, the Excise Inspector, Excise Circle Office, Adoor, and his party were on patrol at Thengamam in Pallickal Village, at about 12.30 p.m. on 17-7-2001. While so, the appellant was seen coming from the opposite side carrying a white plastic cover in his right hand. Seeing the excise party, the appellant made an attempt to flee away leaving the plastic cover there. But, the excise party stopped him there. On examining the plastic cover carried by the appellant, 27 white polythene covers each containing 150 ml. of arrack were found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P2 Arrest Memo. Ext.P3 is the Notice of Arrest. All the covers containing arrack were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 had drawn 300 ml. each of 3 ## CRL.A. 1867/2005 arrack in two 375 ml.bottles as samples from the 4 covers opened earlier for the purpose of examination. The samples so taken were sealed and labelled. All the 27 covers including 4 empty covers were kept in the plastic cover and that cover was sealed and labelled. Thereafter, PW1 left with the appellant, contraband and the records for the Excise Range Office, Adoor, and entrusted them to CW5, the Excise Preventive Officer of that Range Office, through PW2, the Excise Preventive Officer, Excise Circle Office, Adoor. CW5 registered Crime No. 48 of 2001 of the Excise Range Office, Adoor, in respect of the occurrence. Ext.P5 is the Crime and Occurrence Report prepared by CW5. He had produced the appellant along with Ext.P6 Remand Report before the court. He had also produced the contraband including samples along with Ext.P7 List of Property. Ext.P8 is a copy of the Forwarding Note produced by CW5. Ext.P9 is the Certificate of Chemical Analysis issued from the 4 CRL.A. 1867/2005 Chemical Examiner's Laboratory. PW4, the Excise Inspector, Excise Range Office, Adoor, had conducted the investigation of the case. He had questioned the witnesses and recorded their statements. He had completed the investigation. PW5, the Excise Inspector, Excise Range Office, Adoor, verified the case records and submitted the Final Report before the Judicial First Class Magistrate's Court, Adoor. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Pathanamthitta, and, from there, it was made over to the Additional Sessions Court (Adhoc)-I, Pathanamthitta. The court below framed a charge against the appellant alleging the offence under Section 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P9 and MO.1 series on their side. The 5 CRL.A. 1867/2005 appellant was questioned 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 8(1) and (2) of the Abkari Act and convicted him thereunder. He was heard on the question of sentence and imposed the sentence on him. 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 27 polythene covers containing 150 ml.each of arrack at about 12.30 p.m. on 17-7-2001 and he was arrested then and there and the contraband was seized under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 is the Detecting Officer. PW2 accompanied PW1 at the time of detection of the offence. Both these witnesses had 6 ## CRL.A. 1867/2005 supported the prosecution version of occurrence. CWs.3 and 4 were cited as independent occurrence witnesses. CW4 was examined as PW3. He did not support the prosecution case. He was declared hostile to the prosecution. CW3 was not examined by the prosecution. Whether the evidence of PWs.1 and 2 can be relied on for entering a conviction against the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act is the question to be considered and answered. 6. It is the prosecution case that two samples of the contraband were taken and the sample bottles were sealed. It is so stated in Ext.P1 Seizure Mahazar. PWs.1 and 2 also deposed before the court that the samples were sealed. The samples were described as sealed in Ext.P7 List of Property. Even though two samples were drawn, only one sample was sent for chemical analysis. It is reported in Ext.P9 Certificate of Chemical Analysis that ethyl alcohol was 7 ## CRL.A. 1867/2005 detected in the sample. 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? None of the excise officials examined in this case deposed before the court that the sample of the seal affixed on the sample was provided for comparison to the Chemical Examiner. Ext.P8 is a copy of the Forwarding Note submitted by CW5 before the court. A separate space is provided in the Forwarding Note for affixing the sample seal. But, no such sample seal is affixed on that space in Ext.P8. A copy of the Forwarding Note is also produced along with the Original Forwarding Note for the purpose of proving the contents of the Forwarding Note. Since Ext.P8 does not contain the sample seal of the seal affixed on the samples, it must be presumed that the original Forwarding Note also does not contain such a sample seal. Moreover, the property clerk or other official who was in charge of the 8 ## CRL.A. 1867/2005 Material Objects in the court was not examined in this case. Therefore, the fact as to whether a sample seal was affixed on the original Forwarding Note could not be proved through such a witness. In these circumstances, there is no assurance that the comparison made by the Chemical Examiner was with the sample of the seal claimed to have been affixed by PW1 on the samples. Such an assurance is possible only when the sample seal of the seal affixed 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 drawn from the contraband allegedly seized from the appellant in this case. ## 7. 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 9 CRL.A. 1867/2005 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 against the accused in a prosecution unless it is proved that 10 CRL.A. 1867/2005 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 the reasons stated, Ext.P9 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 8. It is the case of the prosecution that after the detection of the offence, the appellant, contraband and the records were handed over by PW1 to CW5 through PW2 at the Excise Range Office, Adoor. It is also the case of the prosecution that the appellant, contraband including samples and the records were produced before the court by CW5. It is the definite case of PW1 that, before handing over the appellant, contraband and the records, he had not gone to the Excise Circle Office, Adoor. But, returned to that office only after entrusting the appellant, contraband and the records at the Excise Range Office, Adoor. PW1 11 CRL.A. 1867/2005 also deposed that the appellant, contraband including samples and the records were handed over at the Excise Range Office, Adoor, through PW2. While PW2 was so going to the Excise Range Office, Adoor, he remained in the jeep away from the Excise Range Office. The case deposed by PW2 was a different one. According to him, after the detection of the offence, PW1 and himself reached the Excise Circle Office, Adoor, and informed the matter to the Circle Inspector. Later, as directed by the Circle Inspector, PW2, along with an Excise Guard, went to the Excise Range Office, Adoor, with the appellant, contraband and the records. Then, PW1 did not accompany him to that office. This statement made by PW2 contradicts the evidence given by PW1. This contradiction, in the circumstances, is a material one. PW4 deposed that the appellant and the contraband were produced at the Excise Range Office, Adoor, from the Excise Circle Office, Adoor. He further 12 CRL.A. 1867/2005 stated that, during his investigation, he did not know that the appellant, contraband etc. reached the Excise Circle Office, Adoor, after the offence was detected. He also stated that in order to ascertain that fact, he did not examine the records of the Circle Office. Ext.P3 is the Notice of Arrest intimating the fact that the appellant was arrested to his father's brother. It is stated in Ext.P3 by PW1 that the excise party was moving to the Excise Circle Office, Adoor, with the appellant. Also stated in it that thereafter the appellant would be handed over to the Excise Range Office, Adoor, and, after completing the formalities, he would be produced before the Judicial First Class Magistrate's Court, Adoor. Therefore, the statement contained in Ext.P3 that the appellant would be taken to the Excise Circle Office, Adoor, also contradicts the statement made by PW1 before the court. 13 CRL.A. 1867/2005 9. PW1 claims that the occurrence had taken place on the side of a road which lies east-west. But, PW2 claims that it was on the side of the road that lies south-north. PW1 stated that he had opened 4 covers containing arrack by pressing the punched portion of the covers with his nail. But, PW2 stated that they were opened by stretching the side of those covers. He had no case that PW1 opened the covers with the help of his nail. It is stated in Ext.P1 that the appellant was seen carrying a white plastic cover in his right hand. PW2 also stated that the colour of the cover carried by the appellant was white. But, such a statement did not find a place in his statement given to the police. He identified that cover while he was in the witness box. Then, he admitted that the colour of the cover identified by him was blue. Along with this, one more aspect also has to be considered. There is absolutely no evidence as to whether the contraband including the samples were kept safely after 14 ## CRL.A. 1867/2005 they were received by CW5 till they were produced before the court. CW5 could not be examined in this case due to medical reasons as deposed by PW5. When all these facts are considered, it is unsafe to enter a conviction against the appellant for a serious offence under Section 8(1) and (2) of the Abkari Act placing reliance on the evidence of PWs. 1 and 2. 10. Ext.P9 Certificate of Chemical Analysis reached the court on 16-10-2002. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of Ext.P9 by the court. But, in this case, the Final Report reached the court only on 6-1-2004. No reason for the inordinate delay occurred in submitting the Final Report before the court had been given by the prosecution in this case. Therefore, the inordinate delay that occurred in submitting the Final Report also affects the prosecution case. This view is strengthened by the decision of this Court 15 CRL.A. 1867/2005 ## in **Surendran v. State of Kerala [2013(3)KHC 780].** 11. For the foregoing reasons, the impugned conviction and sentence passed against the appellant are liable to be set aside. He is entitled to an order of acquittal 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 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed. Sd/- **BABU MATHEW P. JOSEPH JUDGE** ks. True copy P.S. (Hr.Gr.)To Judge 16 ## CRL.A. 1867/2005