V.P. Sunny v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH FRIDAY, THE 8TH DAY OF AUGUST 2014/17TH SRAVANA, 1936 CRL.A.No. 825 of 2005 -------------------------AGAINST THE JUDGMENT IN SC 47/2005 of ADDL. SESSIONS COURT (ADHOC-I), KOTTAYAM DATED 30-04-2005. ----------- APPELLANT/ACCUSED: ------------------------- V.P.SUNNY, S/O.MATHAI, VATTAKUZHIYIL VEEDU, KULAPURAM BHAGOM KOOVAPPALLY VILLAGE, KANJIRAPALLY TALUK. SMT.NIMA JACOB ADV. SRI.P.RAVINDRA BABU RESPONDENT/COMPLAINANT: --------------------------------- STATE OF KERALA, REP. BY EXCISE INSPECTOR, KANJIRAPALLY RANGE REPRESENTED BY PUBLIC PROSECUTOR HIGH COURT OF KERALA, ERNAKULAM. BY ADV. PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-08-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **BABU MATHEW P. JOSEPH, J.** -----------------------------------------------Crl. Appeal No.825 of 2005 -----------------------------------------------Dated this the 8[th] day of August, 2014 ## **JUDGMENT** The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Kottayam, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one year 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 Excise Preventive Officer, Excise Range Office, Kanjirappally, and his party were on patrol at Kulapuram in Koovappally Village at about 6.00 p.m. on 07-12-2002. While Crl. Appeal No.825 of 2005 -2- so, PW3 received secret information that the appellant was selling arrack in front of the Malanadu Deepthi Nursery School situated at Mulappuram. Therefore, PW3 and his party reached that place. While so, the appellant was seen carrying a big shopper in his right hand. Seeing the excise party, the appellant attempted to flee away leaving the big shopper there. But, the excise party stopped him there. On examining the big shopper, it was found that two plastic bottles of two litre containing one and a half litres of arrack in each bottle. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there. PW3 had drawn 300 ml. of arrack in two separate 375 ml. bottles from each of the plastic bottles containing the bulk of arrack. Both the bottles containing arrack and the sample bottles were sealed. Those two bottles containing arrack, two samples and the big shopper were seized by PW3 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW3 reached the Excise Range Office, Crl. Appeal No.825 of 2005 -3- Kanjirappally, and produced the appellant, contraband items and the records there. Based on that, PW4, the Excise Inspector, had registered Crime No.43 of 2002 of that Range Office in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report thus prepared by PW4. He had gone to the place of occurrence and prepared Ext.P3 Scene Mahazar in the presence of witnesses. He had produced the appellant and the properties before the court. He had submitted a Forwarding Note before the court for subjecting the samples to Chemical Analysis. Ext.P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. He had conducted the investigation of the case. 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-I, Kanjirappally. 4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court Crl. Appeal No.825 of 2005 -4- of Session, Kottayam, and, from there, it was made over to the Additional Sessions Court (Adhoc)-I, Kottayam. 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 4 and marked Exts.P1 to P6 and MO1 series and MO2 on their side. The appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. Ext.D1 was marked on the side of the defence. The court below, after considering the matter, found the appellant guilty of the offence under Section 55(a) 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 occurrence took place at Mulappuram at about 6.00 p.m. on 07-12-2002 and PW3 Crl. Appeal No.825 of 2005 -5- arrested the appellant then and there and seized the contraband under Ext.P1 Seizure Mahazar in the presence of witnesses. While he was in the witness box, PW3, by and large, deposed in terms of the prosecution case. CWs.6 and 7 were cited as independent occurrence witnesses. They were examined as PWs.1 and 2. They did not support the prosecution case. They were declared hostile to the prosecution. Whether the appellant can be convicted relying on the sole evidence of PW3 for a serious offence under Section 55(a) of the Abkari Act is the question to be considered. The Investigating Officer had produced Ext.P3 as the Scene Mahazar prepared by him in the presence of witnesses. A perusal of this document would go to show that it is not at all a Scene Mahazar. Moreover, even though witnesses were cited, none of them was examined for proving the preparation of Scene Mahazar. In fact, the place of occurrence had not been specifically proved by the prosecution in this case. Ext.P3 cannot be called a Scene Crl. Appeal No.825 of 2005 -6- Mahazar in its real sense as it does not locate the place of occurrence. A reading of this document will convince that it was prepared in a haphazard way without any responsibility. It does not reflect the seriousness of an Abkari Officer conducting investigation of a case alleging a serious offence under Section 55(a) of the Abkari Act. In short, the place of occurrence remains not proved in this case. The prosecution case is that the properties were produced before the court along with Ext.D1 List of Property on 08-12-2002. It is noted in Ext.D1 that they were produced on 08-12-2002. But, another endorsement is also seen on this document to the effect that those properties were received and entered in the register giving a number only on 16-12-2002. Under whose custody the properties were kept from 08-12-2002 to 16-12-2002? Was it under the custody of the Property Clerk or some other official of the court? The Property Clerk or some other official dealing with the properties in the court was not examined in this case. Therefore, there is no Crl. Appeal No.825 of 2005 -7- assurance that the properties were safely kept in the court from 08-12-2002 to 16-12-2002 when they were received and entered in the register giving a number. One more aspect also has to be considered along with this. It is the case of the prosecution that the properties including the samples were sealed by PW3 at the place of occurrence itself. It is so stated in Ext.P1 Seizure Mahazar. In Ext.D1 List of Property also those properties were described as sealed. PW3 deposed that the bottles containing the bulk of arrack and the two samples drawn from them in two separate bottles were sealed. But in Ext.P2 Crime and Occurrence Report, the two plastic bottles containing the bulk of arrack were described as sealed and the two samples were not described as sealed. 6. Ext.P4 is the Certificate of Chemical Analysis issued from the Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in both the samples. It is also noted in Ext.P4 that the seals on the Crl. Appeal No.825 of 2005 -8- bottles were intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the sample seal of the seal affixed on the samples by PW3? PW4 deposed that he had produced the Forwarding Note before the court for subjecting the samples to Chemical Analysis. But, a copy of the Forwarding Note, even though available among the records, was not tendered in evidence. Therefore, it was not marked. The copy of the Forwarding Note available among the records shows that a specific space is provided in it for affixing the sample seal. But, no sample seal had been affixed in that space. Nowhere in the copy of the Forwarding Note a sample seal is seen affixed. PW3 did not depose before the court that the sample seal was affixed on the Forwarding Note. A copy of the Forwarding Note is also produced along with the Forwarding Note for serving certain purposes. The copy of the Forwarding Note should contain all the entries made in the original Forwarding Note. In order to ascertain what are the Crl. Appeal No.825 of 2005 -9- entries made in the original Forwarding Note during trial, a copy of the Forwarding Note is also produced before the court. Since the copy now available among the records does not contain a sample seal, it must be presumed that the original also did not contain the sample of the seal claimed to have been affixed by PW3 on the samples. I have already found that the Property Clerk or other official of the court who was in charge of the material objects in the court was not examined. Therefore, through such a witness also, the fact as to whether sample seal was affixed on the Forwarding Note could not be proved. The sample seal noted as provided in Ext.P4 may be the seal of the court and comparison made may be with the seal of the court affixed on the sample. Merely comparing the seal of the court affixed on the samples with the specimen seal of the court will not give any assurance that the samples of the contraband allegedly seized from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an Crl. Appeal No.825 of 2005 -10- assurance is possible only when the sample seal of the excise official 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 drawn from the bulk allegedly seized from the appellant. 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 Crl. Appeal No.825 of 2005 -11- 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 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.P4 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt. 7. 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 -12- Crl. Appeal No.825 of 2005 offence alleged against him. 8. 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(a) 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** kns/- //TRUE COPY// P.A. TO JUDGE