Kerala High Court
Remani vs State Of Kerala on 13 December, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY,THE 22ND DAY OF MARCH 2016/2ND CHAITHRA, 1938
CRL.A.No. 2270 of 2005 ( )
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AGAINST THE JUDGMENT IN SC NO.488/2001 OF ADDITIONAL SESSIONS JUDGE,
FAST TRACK-I, THIRUVANANTHAPURAM DATED 13-12-2005
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PETITIONER/APPELLANT/ACCUSED :
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REMANI, D/O.NARAYANI,
MANAKATTUVILAKAM VEEDU,
MUNDAKKAL MURI, VEILOOR VILLAGE.
BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR
SRI.KRISHNADAS P. NAIR
SRI.PRABHU VIJAYAKUMAR
SMT.K.L.SREEKALA
RESPONDENT(S)/COMPLAINANT :
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STATE OF KERALA,
REP. BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM.
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2016,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
NS
P.D. RAJAN, J.
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Crl. Appeal No.2270 of 2005
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Dated this the 22nd day of March, 2016
J U D G M E N T
This appeal is preferred by the accused against the conviction and sentence in S.C. No.488 of 2001 of the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram under Sec.55(a) of the Kerala Abkari Act. The charge against the accused is that on 26.03.1998 at 12.30 p.m., the appellant was found in possession of 2 litres of arrack on the western side of the Maniyanvilakom - Murukkumpuzha Catholic Church road in front of the house of one Mathew, M.T. Land in Vailoor Village by the preventive officer, Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram. The appellant was arrested and the contraband articles were seized after preparing a mahazar. On the next day, she was produced before the Excise Inspector, Excise Range office, Kazhakkottam and registered a crime and occurrence report. After completing investigation, the Excise Inspector, Kazhakoottam laid charge before the Judicial First Class Crl. Appeal No.2270 of 2005 2 Magistrate Court-II, Attingal. Subsequently, the case was committed to Sessions Court, Thiruvananthapuram. From there, the case was made over to Additional Sessions Judge, Fast Track-I, Thiruvananthapuram.
2. During trial, prosecution examined PW1 to PW5 and marked Exts.P1 to P5. MO1 was admitted as material object. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. She did not adduce any defence evidence. Learned Additional Sessions Judge convicted and sentenced the accused to rigorous imprisonment for 1= years and a fine of Rs.1,00,000/- ( Rupees One lakh only) in default of payment of fine, rigorous imprisonment for six months. Being aggrieved by that, the accused preferred this appeal.
3. The learned counsel appearing for the appellant contended that she was arrested on 26.03.1998 at 12.30 p.m. but, produced before the Excise Inspector, only on 27.03.1998 at 10.30 a.m. Where she was retained was not disclosed by PW2, the preventive officer. PW5 has no case that MO1 was produced along with the Crl. Appeal No.2270 of 2005 3 accused. There is no independent corroboration to the alleged seizure and arrest. The sample was not taken from the place of occurrence and also no steps were taken by the excise officials to take sample from the seized articles. In the absence of such evidence, the chemical examination report Ext.P5 is not admissible for a conviction.
4. Heard the learned Public Prosecutor also.
5. The offence was detected by PW2, the Preventive officer, Excise Enforcement and Anti Narcotic Special Squad, Thiruvananthapuram. The evidence of PW2 shows that on 26.03.1998 while he was conducting patrol duty, at 12.30 p.m. he reached at Murukkumpuzha Bakery junction. While he was proceeding through Bakery Junction to Maniyanvilakom Catholic Church road and reached in front of M.T. land which is a house of one Mathew, the appellant was found carrying MO1 and proceeding through the road. On seeing the excise party, the appellant became frightened. On seeing this, PW2 intercepted her and inspected MO1 cannas, in which, he detected two litres of arrack. He tasted and smelled the Crl. Appeal No.2270 of 2005 4 liquid and identified it as arrack. The independent witness present there also identified the liquid as arrack. Thereafter, the appellant was arrested in the presence of independent witnesses. For that, he prepared Ext.P1 mahazar. He also affixed a label in MO1. Accused, witness and PW2 affixed their signature in the label. The independent witnesses and PW2 put their signature in Ext.P1 mahazar also. MO1 was sealed at the place of occurrence. Ext.P2 is the arrest memo and Ext.P3 is the arrest intimation. During cross examination, PW2 admitted that when the accused was produced before the Excise Range Officer, Kazhakkuttom, the Excise Inspector was not present there and therefore the accused was produced before the preventive officer by name, Aliyarukunju. PW3, who accompanied PW2, supported the evidence of PW2. He also identified Ext.P1 mahazar and MO1 cannas. He also admitted that PW2 affixed a label in MO1. PW3 also stated that the accused and the contraband article MO1 were entrusted to one Aliyarukunju.
6. Analysing the oral evidence of these two Crl. Appeal No.2270 of 2005 5 witnesses, it is found that immediately after the arrest of the accused, she was not produced before the Excise Inspector as stated under the Abkari Act and under the Excise Manual. It is imperative that the provisions of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.' for short) shall be strictly and carefully observed in cases regarding to searches and seizures. When a seizure a made, it is the primary responsibility of the seizing officer to seize all the articles and arrest the accused and all the articles recovered in the course of such seizure shall be produced before the concerned Excise Inspector. The articles recovered must be carefully packed, labelled and sealed in the presence of independent witnesses who if literate sign the labels affixed to each article. What is the importance of obtaining signature of the witnesses is that, during trial of the case, they should be called upon to prove the seizure and their signature in the endorsement in the search list and mahazar and in the label. As per Rule 25 of the Kerala Abkari Manual if the accused is a female, whose identity is not open to doubt, no descriptive mark Crl. Appeal No.2270 of 2005 6 which is likely to be construed as transgressing the limits of decency should be taken. In such cases, marks may be got taken another woman with strict regard to decency. The article seized with mahazar and search list should be produced before the Excise Inspector along with the person arrested but, if the accused is admitted by bail by any person other than excise officer these should be reached the Excise Inspector immediately within 12 hours of arrest. These provisions were violated by the preventive officer.
7. In this context, I have examined the evidence of the Excise Range Inspector, Kazhakkottam who was examined as PW4 in this case. His evidence shows that on 27.03.1998, PW2 produced the accused, the records and contraband articles in the excise office. On the basis of that, he registered Ext.P4 crime and occurrence report. On 27.03.1998 the accused was produced before the court with remand application. He also prepared a forwarding note for taking the sample through court. He was also given statement to the investigating officer. PW4 stated that the accused was Crl. Appeal No.2270 of 2005 7 produced before the rescue home. Even though such a statement was made by PW4, no documentary evidence or report has been produced in the trial court to prove that aspect. In the absence of such documentary evidence, the statement of PW4 itself is not sufficient to show that he had complied the benevolent provisions of the Abkari Act.
8. The independent witness PW1 did not support the prosecution case. He denied the signature in Exts.P1, P2 and signature in MO1 label. In this context, the investigation conducted by PW5 has to be analysed. PW5 deposed that on 11.08.2000, he took investigation in this case and completed investigation upto 01.01.2001. He questioned the witnesses and recorded their statements. He also obtained Ext.P5 chemical examination report. As per Ext.P5, 23.53% of ethyl alcohol was detected in the sample. According to Abkari Act every person arrested and the articles seized shall be forwarded without unnecessary delay to the officer in charge of the police station or to the abkari inspector. Here, such procedures were not complied by the Crl. Appeal No.2270 of 2005 8 detecting officer and no sample was taken by the Excise Inspector. This is a serious infirmity in connection with obtaining Ext.P5 chemical examination report. Rule 17 of the Kerala Chemico - Legal Examination Rules reads as follows:
(a) Under this head shall fall such examinations as the estimation of morphine and other ingredients in opium, examination of ganja and other narcotic drugs, coins, documents, paints, fire-arms, bullets etc. in shooting cases, gun barrel residues, fire-works and other explosives, incendiaries, articles involved in cases of explosion, bones, hairs, liquors, illicit arrack samples and blood specimen involved in prohibition offences etc.
(b) In forwarding any miscellaneous article such as mentioned herein- before, the Magistrates, Police Officers or Prohibition Officers as the case may be shall follow the instructions laid down in Rules 30 of Section III so far as they may be applicable and shall be careful to include in their letter or advice to the chemical Examiner information as to the nature and object of the examination required, and to furnish any other information likely to assist the Chemical Examiner in making the required Examination. "
When any sample or thondi article is required Crl. Appeal No.2270 of 2005 9 to be examined by a chemical examiner, the concerned police officer or excise officer shall submit a prescribed application before the court for forwarding the articles to chemical examiner's laboratory for examination or analysis as the case may be. As per the Chemical Examination Rules, a sample form is also provided for forwarding the sample to the chemical examiner's lab. An impression of the seal used in closing the bottle and the description thereof shall be furnished. Such a procedure was not complied in this case.
9. This Court in Rajamma V. State of Kerala [2014 (1) KLT 506] held that mere arrest of the accused without material object is not sufficient to establish that the accused has committed the offence under Sec.55(a) of the Abkari Act. A Division Bench of this court in Ravi V. State of Kerala [2011 (3) KLT 353] held that when sample has been drawn from the contraband article from the possession of the accused it should be reached at the chemical examiners lab in a full proof condition. Even though, PW5 deposed that he forwarded a request for sending the sample to the Crl. Appeal No.2270 of 2005 10 chemical examiners lab, who took the sample from MO1 was not stated by the prosecution. Whether sample seal was provided in the forwarding note was also not proved by the prosecution. If that be the position, a mere statement by PW5 itself is not sufficient to show that he had complied the Kerala Chemico Legal Analysis Rules in its letter and spirit when MO1 was forwarded to chemical examiners lab. Therefore, there is no guarantee that Ext.P5 Chemical Analysis report represents the sample drawn from MO1, which was seized from the possession of the appellant. Therefore, I am of the opinion that this is not a fit case to convict the appellant under Sec.55(a) of the Abkari Act. The trial court also failed to appreciate the legal infirmity.
In the result, the conviction and sentence under Sec.55(a) of the Abkari Act by the Additional Sessions Judge (Fast Track-I), Thiruvananthapuram are set aside and the appellant is acquitted and set at liberty.
Sd/-
P.D. RAJAN,
JUDGE
/ True Copy /
NS/26/03/2016 P.A. To Judge