Kerala High Court
Ravi @ Raveednran vs State Of Kerala on 25 February, 2020
Author: V.G.Arun
Bench: V.G.Arun
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
TUESDAY, THE 25TH DAY OF FEBRUARY 2020 / 6TH PHALGUNA,
1941
CRL.A.No.1083 OF 2007
AGAINST THE JUDGMENT DATED 10-05-2007 IN SC 1197/2001 OF
ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES, NEYYATTINKARA
APPELLANT/ CCUSED (A1) :
RAVI @ RAVEEDNRAN,
S/O. KUNJUKRISHNAN, ARLOOTTUKONAM,
THOTTINKARA VEEDU, PLAMPAZHINJI,
OTTASEKHARAMANGALAM VILLAGE.
BY ADV. SRI.R.T.PRADEEP
RESPONDENT/ COMPLAINANT :
STATE OF KERALA,
REPRESENTED BY THE THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SR.PUBLIC PROSECUTOR SRI.B.JAYASURYA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
25.02.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A.No.1083 OF 2007
2
JUDGMENT
Dated this the 25th day of February, 2020 The first accused in SC.No.1197/2001 of the Additional Sessions Court For the Trial of Abkari Act Cases, Neyyattinkara has filed this appeal, aggrieved by his conviction and the sentence of rigorous imprisonment for a period of three years and a fine of Rs.1,00,000/- imposed on him for the offence under Section 58 of the Kerala Abkari Act ('the Act', for short). The prosecution allegations, which lead to the conviction of the appellant are as under :
The Sub Inspector of Police, Vellarada Police Station, while doing patrol duty on 27.12.1999, received reliable information regarding sale of arrack by the appellant and another, near Ankottukonam Channel side. When the patrol party reached the site by about 6.00 p.m., they found the appellant and one Chellappan, the 2nd accused near a plantain field belonging to one Sivaraman Nair. The appellant was holding a 10 litre white jerry can and the 2nd accused was holding a glass tumbler. The accused were apprehended and on examination, the jerry can in the possession of the appellant was found to contain 8 litres of arrack. The Sub Inspector of Police (PW4) arrested the accused, seized the contraband and registered an FIR for the offence under Section 58 of the Abkari Act. The entire quantity of seized contraband was CRL.A.No.1083 OF 2007 3 produced before the jurisdictional Magistrate Court the next day, i.e.28.12.1999, along with the thondi list. Later, on 22.02.2000, PW5, the thondi section clerk attached to the Magistrate Court, who had drawn the sample from the contraband as per the direction of the learned Magistrate, forwarded the sample to the Chemical Examiner along with covering letter and forwarding note. The chemical analysis report revealed that the sample received for analysis contained Ethyl Alcohol.
2. In order to prove the prosecution case, PWs 1 to 5 were examined and Exts. P1 to P8 marked in evidence. MO1 and MO2, the jerry can and the glass tumbler allegedly seized from the possession of the accused were produced, identified and marked as MO1 and MO2. In his examination under Section 313 of the Cr.P.C., the appellant denied the incriminating circumstances brought out against him and examined DW1 as the defence witness. The trial court, on appreciation of the evidence and on consideration of the contentions urged, came to the conclusion that the prosecution had succeeded in proving that the accused had committed the offence under Section 58 of the Abkari Act, convicted the accused and sentenced him in the manner aforementioned.
3. Heard Sri.R.T.Pradeep, the learned counsel for the appellant and Sri.B.Jayasurya, the learned Senior Public Prosecutor.
4. The thrust of the contentions urged by the learned counsel for the appellant is on the impropriety, rather illegality, in CRL.A.No.1083 OF 2007 4 the thondi section clerk attached to the Magistrate Court having collected and forwarded the sample for chemical analysis. Drawing attention to paragraph 13 of the impugned judgment, the learned counsel would submit that the reason stated by the trial court for approving the sampling is patently illegal. A reading of the paragraph 13 of the judgment shows that PW5, the thondi section clerk, had deposed that the thondi items received under Ext.P4 were verified and received by her after ensuring that the seal on MO1 can was in tamper proof condition and that she had registered the items in Ext.P6 thondi register. PW5 would submit that sample was drawn from MO1 jerry can at the direction of the learned Magistrate and the sample bottle was covered with a cloth and tied with thread and the metal seal of the court affixed, to make it tamper proof. Thereafter the sample bottle forwarded to the Chemical Examiner along with a covering letter and forwarding note, together with the sample metal seal of the court. The trial court took note of the fact that, as on the date of examination of PW5, Exts.P7 and P8, the covering letter and the forwarding note under which the sample was sent for chemical analysis were not available in the court and those documents were summoned and produced in the court only subsequently. Therefore, PW5 had no occasion to verify and depose with reference to Exts.P7 and P8. It was also noticed that in Ext.P8, there was no sample seal affixed, either by the court or the investigation agency. This fatal defect was sought to be got over CRL.A.No.1083 OF 2007 5 by observing that the original metal seal of the Police Station itself can be called upon by the court concerned to effectively exercise its jurisdiction so as to confirm the correctness of the tamper proof nature of the seal on the can and that there is nothing strange about such procedure being adopted. The learned counsel for the appellant derided the procedure adopted by the Magistrate Court and approved by the trial court. It is submitted that the sample should be drawn by the Detecting Officer, immediately after seizure of the contraband, that too in the presence of the accused and independent witnesses, if any, available. The sample thus drawn should be produced before the jurisdictional Magistrate Court without delay and from there it has to be forwarded to the Chemical Examiner, under a forwarding note, which should necessarily contain the sample of the seal affixed on the bottle. It is pointed out that the procedure of either the Magistrate concerned or the officials attached to the Magistrate Court drawing sample from the seized contraband has been deprecated by this Court, holding such procedure to be a fatal defect. The decision in Smithesh v. State of Kerala [2019 (2) KLT 974], paragraph 7 which is relied on by the learned counsel reads as follows :-
7. Of the 18 cans produced in court, 15 were seen empty during trial. Four samples were sent for analysis. Evidence shows that two samples each were taken from two cans. Only in three of the cans, some liquid was found during trial. The Ext.P9 report of the learned Magistrate shows that he had also collected some CRL.A.No.1083 OF 2007 6 samples. It is not known how, or for what purpose, or under what authority, he collected samples from the property produced before the authorised officer. Even the authorised officer cannot collect sample at that stage. His function is only to verify the properties produced, and prepare an inventory, and the function of the Magistrate is only to verify the inventory to see that the things are proper and correct. Anyway, 15 out of the 18 cans are empty in this case. It is not known from which can, sample was taken by the Detecting Officer or why he did not take sample from the 18 cans.
5. I find substantial force in the contention urged on behalf of the appellant. It is not for the Magistrate Court or the officials attached to the Court, to undertake the exercise of collecting sample from the contraband seized. The sampling of the contraband should be contemporaneous to the seizure and should necessarily be done by the Detecting Officer. Only such procedure would ensure that the sample is drawn from the contraband. As far as the instant case is concerned, even though the contraband was produced before the court on 27.12.1999, the sample was forwarded by PW5, the thondi clerk, only on 22.02.2000, though, according to her, the sample was collected on 27.12.1999 itself.
6. Another fatal defect is that the forwarding note did not contain the seal, either of the court or of the Police Station concerned. This defect was brushed aside by the trial court by stating that the original metal seal of the Police Station could be summoned and verified. Again, it is not for the trial court to undertake such exercise. It is for the prosecution and the CRL.A.No.1083 OF 2007 7 investigating agency to provide necessary evidence in support of the allegations, for enabling the court to arrive at a finding regarding the guilt of the accused.
The aforementioned fatal defects having vitiated the trial, the appellant could not have been convicted. In the result, the appeal is allowed, the impugned judgment is set aside and the appellant is acquitted. The bail bond executed by the appellant will stand cancelled.
Sd/-
V.G.ARUN, JUDGE RKM