Kerala High Court
Babu vs State Of Kerala
Author: Babu Mathew P. Joseph
Bench: Babu Mathew P.Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
WEDNESDAY, THE 9TH DAY OF MARCH 2016/19TH PHALGUNA, 1937
CRL.A.No. 1769 of 2006 (F)
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AGAINST THE JUDGMENT IN SC 699/2001 of ADDL. SESSIONS COURT (ADHOC)-
II, TRIVANDRUM DATED 15-7-06
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APPELLANT/ACCUSED::
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BABU, S/O. DAMODARAN,
EDAVILAKATHU PUTHEN VEEDU, ALAMPARA, NANNIYODE
ANADU MURI, PALODE VILLAGE, NEDUMANGAD.
BY ADVS. SRI.T.A.UNNIKRISHNAN
SRI.K.SATHEESH KUMAR
RESPONDENT/COMPLAINANT::
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STATE OF KERALA, REP. BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
PUBLIC PROSECUTOR MS.LILLY LESLIE
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
09-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BABU MATHEW P. JOSEPH, J.
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Crl. Appeal No.1769 of 2006
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Dated this the 9th day of March, 2016
JUDGMENT
1. kThe appellant was convicted by the Additional Sessions Court (Ad hoc)-II, Thiruvananthapuram, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for one and a half years and to pay a fine of 1 lakh and, in default of payment of fine, to undergo simple imprisonment for six 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:
PW6, the Excise Inspector, Excise Enforcement and Anti- Narcotic Special Squad, Thiruvananthapuram, and his party were on patrol at Anad in Palode Village at about 1.30 p.m. Crl. Appeal No.1769 of 2006 -2- on 28-10-1998. While so, the appellant was seen coming from the opposite side carrying a 5 litre black jerrycan. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the jerrycan carried by the appellant, 3 litres of arrack was found in it. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW6 then and there preparing Ext.P5 Arrest Memo in the presence of witnesses. The jerrycan containing arrack was sealed, labelled and seized by PW6 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, the appellant, contraband and the records were handed over to PW5, the Excise Inspector, Excise Range Office, Vamanapuram. He had registered Crime No.36 of 1998 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW5. The appellant, contraband and the records were produced before the Judicial First Class Magistrate's Court-I, Nedumangad. Ext.P4 is the List of Property. Ext.P2 is the Certificate of Chemical Crl. Appeal No.1769 of 2006 -3- Analysis issued from the Chemical Examiner's Laboratory, Thiruvananthapuram. The investigation of the case was conducted by PW4, the Excise Inspector, Excise Range Office, Vamanapuram. He had questioned the witnesses and recorded their statements. He had completed the investigation and submitted the Final Report before the court.
4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thiruvananthapuram, and, from there, it was made over to the Assistant Sessions Court, Nedumangad. Later, the case was withdrawn and made over to the Additional Sessions Court (Ad hoc)-II, Thiruvananthapuram. 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 6 and marked Exts.P1 to P5 and M.O.1 on their side. CWs.1 and 2 were also examined and Ext.C1 was marked. The appellant was examined under Crl. Appeal No.1769 of 2006 -4- Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. He maintained that he was innocent in this case. The defence has not adduced any evidence. 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. It is the case of the prosecution that the appellant was found in possession of 3 litres of arrack in a jerrycan on 28-10-1998 and he was arrested then and there and the contraband was seized by PW6 under Ext.P1 Seizure Mahazar. It is stated in Ext.P1 Seizure Mahazar that the jerrycan containing arrack was sealed and labelled. PW6, the Detecting Officer, and PW3, the Excise Guard claimed to have accompanied PW6 at the time of detecting the offence, deposed before the court that the jerrycan containing arrack was sealed. The nature of Crl. Appeal No.1769 of 2006 -5- the seal affixed on the jerrycan was not described in Ext.P1 Seizure Mahazar. The evidence tendered by PWs.3 and 6 also did not show the nature of the seal claimed to have been affixed. PW5 produced the contraband before the court along with Ext.P4 List of Property. The property is simply described as 3 litres of arrack containing in a 5 litre black jerrycan. The property was not at all described as sealed or labelled.
6. There is no evidence on record showing that the investigating agency had produced a Forwarding Note before the court for the purpose of taking sample and subjecting that sample to chemical analysis. Admittedly, no sample of the contraband allegedly seized from the appellant was taken by PW6. None of the official witnesses examined in this case has a case that sample was taken and produced before the court for the purpose of subjecting the same to chemical analysis. CW1, the property clerk of the court, deposed that sample was taken under her supervision. It is also in her evidence that at the time of producing the Crl. Appeal No.1769 of 2006 -6- contraband before the court along with Ext.P4 List of Property, she was not working in that court. It is her case that the contraband thus produced before the court, after taking the sample, was returned to the Excise Officer. CW1 deposed that she was not working in that court when the contraband was so returned to the Excise Officer. When the sample was taken? How much quantity was taken as sample? No answers are there for these questions. No document has been produced before the court for the satisfaction of the court that sample was in fact taken as claimed by CW1. Moreover, CW1 did not have a case that she had taken sample from the contraband produced in this case while she was being examined in chief. Such a fact was brought on record only during re-examination. That apart, how could CW1 identify the property produced in this case in view of the fact that it was not described as sealed or labelled in Ext.P4 List of Property. CW1 did not say that while taking the sample under her supervision from the contraband, it was identifiable by way of the seal affixed or Crl. Appeal No.1769 of 2006 -7- the label affixed on it. When PW6 was examined before the court it was quite impossible for him to assert as to whether M.O.1 jerrycan was in fact seized from the appellant for want of required details on it. When all these facts are considered, it is quite unsafe to rely on the evidence of CW1 in order to find that the sample claimed to have been taken by her was really the sample of the contraband allegedly seized from the appellant. Moreover, the clerk who was dealing with the properties at the time when the contraband was produced along with Ext.P4 in this case and the property clerk who was dealing with the properties when the contraband was returned to the Excise Officer for safe custody were not examined. There is no evidence at all as to whether the contraband was kept under safe custody after returned the same to the Excise Officer from the court.
7. Ext.P2 is the Certificate of Chemical Analysis. It is reported in this document that ethyl alcohol was detected in the sample. In view of the foregoing facts with regard to the sample of the contraband, there is no assurance that the Crl. Appeal No.1769 of 2006 -8- sample of the contraband allegedly seized by PW6 from the appellant had, in fact, reached the Chemical Examiner for analysis. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case.
8. 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."
Crl. Appeal No.1769 of 2006 -9-
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, Ext.P2 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt.
9. Section 50 of the Abkari Act deals with investigation and submission of report before the Magistrate. This Section reads as follows:
"50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:- (1) Every investigation into the offence under this Act shall be completed without unnecessary delay.
Crl. Appeal No.1769 of 2006 -10-
(2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a police report, a report in accordance with sub-
section (2) of section 173 of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974)."
This Section mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. As soon as investigation into the offence is completed, the Abkari Officer shall forward a report in accordance with Subsection 2 of Section 173 of Cr.P.C. to the Magistrate concerned. This mandate of the statute was ignored by the investigating agency in this case. The alleged occurrence in this case was on 28-10-1998. But, the witnesses were questioned only on 17-09-2000, 19-09-2000 and on 21-09-2000 and the Final Report was submitted only on 01-01-2001. Ext.P2 Certificate of Chemical Analysis dated 15-02-1999 has been received by the court on 03-07-1999. The investigating agency should have submitted the Final Report before the court soon after the receipt of Ext.P2. But, Crl. Appeal No.1769 of 2006 -11- the investigating agency has taken nearly one and a half years for submitting the Final Report before the court after the receipt of Ext.P2 by the court. This inordinate delay in conducting investigation and submitting Final Report before the court is fatal to the prosecution case in the facts and circumstances of this case. This view is strengthened by the decision of this Court in Surendran v. State of Kerala (2013 (3) KHC 780). PWs.3 and 6, by and large, deposed before the court supporting the prosecution case of occurrence. PWs.1 and 2 were cited and examined by the prosecution as independent occurrence witnesses for proving their case. But, they have not supported the prosecution case. They were declared hostile to the prosecution. The investigating agency has not prepared a Scene Mahazar showing the place of occurrence in this case. No explanation has been offered also for not preparing a Scene Mahazar. In view of all the foregoing facts, this Court is of the considered view that it is totally unsafe to convict the appellant for a serious offence under Section 55(a) of the Crl. Appeal No.1769 of 2006 -12- Abkari Act. The appellant, at least, is entitled to the benefit of doubt.
10. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside. He is entitled to be acquitted of the offence alleged against him.
11. In the result, the conviction and sentence passed by the court below against the appellant 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 Crl. Appeal No.1769 of 2006 -13-