Kerala High Court
Sreedharan Pillai vs State Of Kerala on 31 May, 2004
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
TUESDAY, THE 2ND DAY OF SEPTEMBER 2014/11TH BHADRA, 1936
CRL.A.No.933 of 2004 (A)
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AGAINST THE JUDGMENT IN SC 608/2002 of ADDL. SESSIONS COURT (FAST
TRACK), ALAPPUZHA DATED 31-05-2004
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APPELLANT/ACCUSED::
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SREEDHARAN PILLAI, S/O. KRISHNA PILLAI
SREENILAYAM, ARUNOOTIMANGALAM MURI, VETTIYAR VILLAGE
MAVELIKKARA.
BY ADV. SRI.GEORGE VARGHESE (PERUMPALLIKUTTIYIL)
RESPONDENTS/COMPLAINANT::
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1. STATE OF KERALA, REPRESENTED BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA.
2. EXCISE RANGE INSPECTOR, MAVELIKKARA.
R1 BY PUBLIC PROSECUTOR SMT.SEENA RAMAKRISHNAN
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02-09-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
BABU MATHEW P. JOSEPH, J.
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Crl. Appeal No.933 of 2004
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Dated this the 2nd day of September, 2014
JUDGMENT
The appellant was convicted by the Additional Sessions Court (Adhoc)-I, Alappuzha, for the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo imprisonment for one year and to pay a fine of 1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for one year. Challenging the conviction and sentence so 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 respondents.
3. The prosecution case is briefly stated as follows:
PW1, the Excise Preventive Officer, Excise Range Office, Mavelikara, and his party were on patrol at Arunootimangalam in Vettiyar Village, at about 8 p.m. on Crl. Appeal No.933 of 2004 -2- 20-10-2000. While so, the appellant was seen carrying a 1.5 litre bottle in his right hand and a glass tumbler in his left hand. Seeing the excise party, the appellant attempted to flee away. But, he was stopped there by the excise party. On examining the bottle carried by him, 500 ml. of arrack was seen in it. Since the appellant had committed an offence under the Abkari Act, he was arrested then and there by PW1. The bottle containing arrack and the glass tumbler were seized by PW1 under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 had drawn 200 ml. of arrack in a 375 ml. bottle as sample and that bottle was sealed. The bottle containing the rest of the arrack was also sealed.
Thereafter, PW1 reached the Excise Range Office, Mavelikara, with the appellant, properties and the records at 10.00 p.m. PW2, the Assistant Excise Inspector attached to that office, registered Crime No.109 of 2000 in respect of the occurrence. Ext.P2 is the Crime and Occurrence Report prepared by him. He had produced the appellant and the Crl. Appeal No.933 of 2004 -3- properties before the court. He had also submitted the Forwarding Note for the purpose of subjecting the sample of the contraband to chemical analysis. PW5, the Excise Inspector of that Range Office, 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, Mavelikara.
4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Alappuzha, and, from there, it was made over to the Principal Assistant Sessions Court, Alappuzha. A charge was framed against the appellant alleging the offences under Sections 8 and 55(a) of the Abkari Act. The appellant had pleaded not guilty of the charge. Later, the case was withdrawn and transferred to the Additional Sessions Court (Adhoc)-I, Alappuzha. The prosecution examined PWs.1 to 5 and marked Exts.P1 to P3 and MOs.1 and 2 on their side. The Crl. Appeal No.933 of 2004 -4- appellant was examined under Section 313 of Cr.P.C. He had denied all the incriminating circumstances shown against him. He stated that he was innocent and was falsely implicated in this case. DW1 was examined 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 appellant was found in possession of 500 ml. of arrack at about 8.00 p.m. on 20-10-2000 and he was arrested then and there by PW1 and seized the contraband under Ext.P1 Seizure Mahazar in the presence of witnesses. PW1 is the Detecting Officer. PW4, an Excise Guard, accompanied PW1 at the time of detection of the offence. Both these witnesses, by and large, supported Crl. Appeal No.933 of 2004 -5- the prosecution version of occurrence. PW3 was cited as an independent occurrence witness. He did not support the prosecution case. He was declared hostile to the prosecution. Whether the appellant can be convicted for a serious offence under Section 55(a) of the Abkari Act relying on the evidence of the excise officials PWs.1 and 4 is the question to be considered.
6. The prosecution case is that the occurrence had taken place at about 8.00 p.m. on 20-10-2000 at Arunootimangalam in Vettiyar Village. The Investigating Agency in this case had not prepared a Scene Mahazar in order to clearly locate the place of occurrence. According to PW1, there was only one person to witness the occurrence apart from the excise officials. There was no light also at the scene place at that time. His case is that he had prepared Ext.P1 Seizure Mahazar using the light of a torch as there was no light there at that time. According to PW4, the place of occurrence was known to him and it is a place where Crl. Appeal No.933 of 2004 -6- street light is available. But, he did not know whether street light was there at the time of detecting the offence. Both PWs.1 and 4 maintained ignorance about the institutions located at the scene place. According to the defence, there were various institutions at the scene place and sufficient light was there at that time. If a Scene Mahazar of the scene place was prepared by the Investigating Agency, it would have been helpful for ascertaining the actual nature and position of the place of occurrence. But, a Scene Mahazar had not been prepared by the Investigating Agency in this case. The case of the prosecution is that the appellant was seen carrying a 1.5 litre bottle containing 500 ml. of arrack in his right hand and a glass tumbler in his left hand at about 8.00 p.m. at a place where no light was available. Moreover, the prosecution has no case that some customers were present there. In the light of these facts, the absence of preparation of a Scene Mahazar assumes significance.
7. PW1 expressed his view that two independent Crl. Appeal No.933 of 2004 -7- witnesses were required for searching the appellant. But, according to him, there was only one person available and hence, he could not include one more person also as a witness. He admitted that people are residing in the nearby area. According to PW4, about 6 persons were present at the place of occurrence during the detection of the offence and the completion of the processes. This statement of PW4 belies the claim made by PW1 that there was only one person available at the time of the detection of the offence.
8. PWs.1 and 4 deposed that they had reached the Excise Range Office, Mavelikara, with the appellant, properties and the records at 10.00 p.m. on 20-10-2000 itself. PW1 stated that he had stayed in that office during that night. He had handed over the appellant and the properties to the Excise Inspector of that Range Office at 8.00 a.m. on the next day. He further stated that the charge of the Excise Inspector was not given to anybody else. But, the case of PW2 is something different. He stated that he Crl. Appeal No.933 of 2004 -8- came to that office at 8.00 a.m. on 21-10-2000 when PW1 had produced the appellant and the properties before him. The prosecution did not make an attempt to resolve or clarify the contradiction in the evidence of PW1 and PW2 in respect of this material fact. If the statement made by PW1 was a mistaken one which could have been clarified by the prosecution by seeking clarifications during re-examination. Similarly, if the statement made by PW2 was wrong which also could have been clarified by the prosecution. But, no such clarification was sought for either from PW1 or from PW2. Two official witnesses speak in different ways in respect of a material fact. The then Excise Inspector of that Range Office is not a witness in this case. There is no evidence to show that the charge of the Excise Inspector was given to PW2 during the relevant period. There is unimpeachable evidence to show that the case had been registered by PW2 based on the records received at the Range Office. He only had produced the accused as well as Crl. Appeal No.933 of 2004 -9- the properties before the court. Further, he had submitted the Forwarding Note before the court for subjecting the sample to Chemical Analysis. In view of these facts, it is only reasonable to find that PW1 had entrusted the accused, contraband and the records to PW2, the Assistant Excise Inspector of that Range Office.
9. Learned counsel for the appellant contends that PW2, being only an Assistant Excise Inspector, was not empowered to receive the appellant or the properties seized by PW1. Therefore, there was clear violation of the provisions in Section 40(3)(b) of the Abkari Act. So, the entrustment of the appellant and the properties with PW2 by PW1 was illegal adversely affecting the case of the prosecution, submits the learned counsel. The offence alleged against the appellant was a serious one attracting long period of imprisonment and huge amount of fine. In such a circumstance, strict compliance of the relevant provisions in the Abkari Act is required. A Division Bench of Crl. Appeal No.933 of 2004 -10- this Court in Ravi v. State of Kerala (2011 (3) KLT 353) laid down that there is no violation of Section 40(3)(b) of the Abkari Act if the arrested person or the seized property is produced before an officer who is holding charge of the Excise Inspector, notwithstanding the fact that he is of a rank lower than that of an Excise Inspector. As already pointed out, there is absolutely no evidence to show that PW2 was holding the charge of the Excise Inspector of that Range Office at that time. PW2 had not claimed that he was holding charge of the Excise Inspector. Therefore, there was violation of Section 40(3)(b) of the Abkari Act as contended by the learned counsel for the appellant. This is fatal to the prosecution.
10. It is the prosecution case that PW1 had drawn 200 ml. of arrack in a 375 ml. bottle as sample and that sample bottle was sealed. PW1 deposed that the seal affixed on the sample bottle was his personal seal with the impression 'P'. Ext.P3 is the Certificate of Chemical Analysis issued from the Crl. Appeal No.933 of 2004 -11- Chemical Examiner's Laboratory. It is reported in this document that ethyl alcohol was detected in the sample. It is also noted in Ext.P3 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? Was it the sample seal of PW1 as claimed by him? Neither PW1 nor PW2 nor PW5 deposed before the court that the sample seal was provided for the comparison by the Chemical Examiner. PW2 stated that he had submitted Forwarding Note before the court. But, a copy of that Forwarding Note had not been marked in this case. The copy of the Forwarding Note is not seen among the records of the case. There is no evidence to show that the Forwarding Note describing the sample of the contraband contain the sample impression of the seal claimed to have been affixed by PW1 on the sample bottle. Such a fact could have been ascertained by examining the Property Clerk or other official who was dealing with the material objects in the court. But, no such person was examined. Therefore, Crl. Appeal No.933 of 2004 -12- there is no assurance that the Chemical Examiner compared the seal affixed on the sample bottle with the sample of that seal. Such an assurance is possible only when the sample of the seal affixed on the sample bottle 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 drawn from the bulk allegedly seized from the appellant in this case.
11. 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.Crl. Appeal No.933 of 2004 -13-
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."
This Court in Ravi v. State of Kerala (Supra) 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.P3 certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt.
12. For the foregoing reasons, the conviction and Crl. Appeal No.933 of 2004 -14- sentence passed by the court below 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.
13. 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. The amount, if any, deposited by the appellant as directed by this Court shall be returned to him.
This appeal is allowed.
Sd/-
BABU MATHEW P. JOSEPH JUDGE ks & kns/-
//TRUE COPY// P.A. TO JUDGE Crl. Appeal No.933 of 2004 -15-