Kerala High Court
Prasanth vs State Of Kerala on 21 December, 2005
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
TUESDAY, THE 15TH DAY OF JULY 2014/24TH ASHADHA, 1936
CRL.A.No.24 of 2006 (C)
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AGAINST THE JUDGMENT IN SC 1995/2002 of III ADDL. SESSIONS COURT,
KOLLAM DATED 21-12-2005
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APPELLANT/ACCUSED:
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PRASANTH, S/O.PRAKASH,
VIJAYA BHAVANAM VEEDU, KAITHAKKUZHI CHERI
ADICHANALLOOR VILLAGE, KOLLAM.
BY ADV. SRI.C.RAJENDRAN
RESPONDENT/COMPLAINANT:
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STATE OF KERALA, REPRESENTED BY
THE EXCISE INSPECTOR, CHATHANNOOR IN CRIME NO.
29/99 OF CHATHANNOOR EXCISE CRIME THROUGH
PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.P.P.JAYAKUMAR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
15-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BABU MATHEW P. JOSEPH, J.
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Crl. Appeal No.24 of 2006
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Dated this the 15th day of July, 2014
JUDGMENT
The appellant was convicted by the Additional Sessions Court-III, Kollam, 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 one month. The conviction and sentence so passed by the court below are challenged in this appeal.
2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.
3. The case of the prosecution is briefly stated as follows: PW3, the Excise Preventive Officer, Excise Range Office, Chathannoor, and his party were on patrol at Konnakkad in Adichanalloor Village at about 6.00 p.m. on 15-06-1999. While so, the appellant was seen coming from Crl. Appeal No.24 of 2006 -2- the opposite side carrying a white 5 litre jerrycan in his right hand. Seeing the excise party, the appellant attempted to flee away. But, the excise party stopped him there. On examining the liquid contained in the jerrycan carried by the appellant, it was revealed that it contained about three litres of arrack. Since the appellant has committed an offence, he was arrested in the presence of respectable persons of that locality. Ext.P2 is the Arrest Memo. PW3 has drawn two samples of 300 ml. each in two 375 bottles from the bulk contained in the jerrycan. Both the samples and the jerrycan were sealed and labelled and seized them by PW3 under Ext.P1 Seizure Mahazar. Thereafter, PW3 reached the Excise Range Office, Chathannur, with the accused, contraband and the records and entrusted them to PW4, the Excise Inspector. PW4 registered Crime No.29 of 1999 of that range office on the next day. Ext.P3 is the Crime and Occurrence Report thus prepared by PW4. He has produced the appellant before the court along with Ext.P4 Remand Report. Crl. Appeal No.24 of 2006 -3- He has also produced the contraband items before the court along with Ext.P5 List of Property. The investigation of the case was taken over by PW5, the Excise Inspector, on 04-04-2001. He has questioned the witnesses and recorded their statements. After completing the investigation, he has submitted the Final Report before the Judicial First Class Magistrate's Court, Paravur.
4. The learned Magistrate committed the case to the Court of Session, Kollam and, from there, it was made over to the Additional Sessions Court-III, Kollam. The court below framed a charge against the appellant alleging the offence under Section 55(a) of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P6 and MOs.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. He has denied the incriminating circumstances shown against him. The defence has not adduced any evidence. The court below, after considering the matter, Crl. Appeal No.24 of 2006 -4- 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 arrested from the scene place itself in the presence of respectable persons of that locality and in the presence of PW2. It is the specific case of the appellant that he is totally innocent in this case and the excise officers have arrested him from his house on the morning of 16-06-1999. The excise officers came to his house enquiring about his father. Since his father was not there, he was taken into custody assuring that he would be released on reaching the father. The respectable person cited as the first witness of the arrest of the appellant was neither cited as a witness nor examined by the prosecution. PW2 did not support the case Crl. Appeal No.24 of 2006 -5- of arrest of the appellant. He stated that he had never seen the appellant. The arrest with the contraband is the basis of the prosecution of the appellant. In the light of the directions of the Honourable Supreme Court in D. K. Basu v. State of W.B. (AIR 1997 SC 610), two things are necessarily to be complied with. The first thing is that the officer carrying out the arrest should prepare a memo of arrest at the time of arrest. Here, the prosecution has produced Ext.P2 Arrest Memo. The second thing is that the factum of arrest shall be informed to a friend or relative or other person known to the arrestee as directed by the Honourable Supreme Court. Here, in this case, there is no evidence to show that the second condition so imposed has been complied with by way of preparing an arrest intimation. So there is non-compliance of the direction issued by the Honourable Supreme Court in that respect.
6. It is the prosecution case that PW3 has sealed the samples as well as the jerrycan containing arrack when they Crl. Appeal No.24 of 2006 -6- were seized under Ext.P1. PW3 deposed also that the jerrycan and the sample bottles were so sealed. The impression of the seal was not affixed on Ext.P1. PW3 deposed that he did not remember as to the impression of the seal affixed. PW5, the Investigating Officer, stated before the court that he did not know what was the impression of the seal affixed on the material objects. The material objects are MO1 jerrycan containing arrack and MO2 sample bottle of arrack. PW4, the Excise Inspector, deposed that sample seal was affixed on the Forwarding Note. Also stated that the personal seal of PW3 was so affixed on material objects and Forwarding Note. Ext.P1 Seizure Mahazar does not contain a statement that the personal seal of PW3 was affixed on the material objects. A Forwarding Note is not seen submitted before the court. It can be seen from Ext.P5 with which the material objects were produced before the court that the records produced include a chemical requisition. Was it a Forwarding Note? A copy of the Forwarding Note has not Crl. Appeal No.24 of 2006 -7- been marked in this case. Such a document is not seen available among the records of the case. The Property Clerk of the court has not been examined in this case. Ext.P6 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 the sample and the sample of liquid contained 30.44% by volume of ethyl alcohol. Also noted in Ext.P6 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal is mentioned here? Was it the sample seal of the court or the sample seal of the seal affixed on the sample by the Excise Officer? In the absence of necessary evidence, it cannot be found with certainty that the sample seal noted in Ext.P6 was the sample seal provided by the Excise Officer. It can also be the seal of the court. Therefore, there is no assurance that sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is Crl. Appeal No.24 of 2006 -8- possible only when the sample 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 taken from the bulk 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 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.24 of 2006 -9- 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 is 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.
8. The alleged occurrence in this case took place on 15-06-1999. PW4 stated that he had not conducted any investigation in this case. The reason explained by him was that there were old cases and the Chemical Analysis Report was not received also. The Certificate of Chemical Analysis reached the court on 30-10-1999. Whether the Investigating Agency has conducted investigation of this case soon after Crl. Appeal No.24 of 2006 -10- the receipt of the Certificate of Analysis by the court? PW5 is the Investigating Officer. His evidence shows that he had taken over the investigation only on 04-04-2001 i.e. nearly 2 years after the alleged occurrence. Thereafter, only the witnesses were questioned and recorded their statements by PW5. Therefore, there was inordinate delay in conducting the investigation of the case and submitting the Final Report before the court.
9. Section 50 of the Abkari Act deals with investigation of the case and forwarding of report to 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.
(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 Crl. Appeal No.24 of 2006 -11- 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)."
Section 50 thus shows that investigation into the offence shall be completed without delay. As soon as the investigation is completed, the Abkari Officer has to forward a report in accordance with Subsection (2) of Section 173 of Cr.P.C. This mandate of this statute was not at all followed by the prosecuting agency in this case. No satisfactory explanation is there for the same. The explanation offered by PW4 regarding the non-receipt of the Certificate of Chemical Analysis is not a satisfactory one as that Certificate was received by the court as early as on 30-10-1999. The Investigating Agency should have submitted the Final Report before the court soon after the receipt of that Certificate. But, in this case, he took more than one and a half years to submit the Final Report before the court. The investigation of the case was conducted only Crl. Appeal No.24 of 2006 -12- after 04-04-2001. PW3 did not give the details with regard to the pendency of old cases that prevented him from conducting the investigation. PW5 did not give any explanation in regard to the inordinate delay occurred in the investigation. Therefore, the inordinate delay in conducting the investigation and submitting the Final Report before the court in this case is fatal to the prosecution in the facts and circumstances of this case. This view is strengthened by the decision of this Court in Surendran v. Sate of Kerala (2013 (3) KHC 780).
10. The prosecution has cited PWs.1 and 2 as independent occurrence witnesses. Both of them did not support the prosecution case. They were declared hostile to the prosecution. PW3 is the Detecting Officer. He deposed in support of the prosecution version of occurrence. In the facts and circumstances, it is not at all safe to convict the appellant for a serious offence under Section 55(a) of the Abkari Act solely relying on the evidence of PW3. Crl. Appeal No.24 of 2006 -13-
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 under Section 55(a) of the Abkari Act.
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 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 & ks/-
//TRUE COPY// P.A. TO JUDGE Crl. Appeal No.24 of 2006 -14-