(2015) 393 KLW 662
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR. JUSTICE BABU MATHEW P.JOSEPH
THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936
CRL.A.No. 450 of 2004 (C)
AGAINST THE JUDGMENT IN SC 228/2001 of ADDL. SESSN. COURT (ADHOC-II) KASARAGODE, DATED 19-02-2004 CP 18/2001 of J.M.F.C.-I,HOSDURG DATED 30-05-2001
APPELLANT/ACCUSED
H.KRISHNAN
BY ADV. SRI.M.SASINDRAN
RESPONDENT/COMPLAINANT
STATE - REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERAL, ERNAKULAM.
BY ADV. PUBLIC PROSECUTOR SRI.C.K.JAYAKUMAR
JUDGMENT
The appellant was convicted by the Additional Sessions Court (Adhoc)II, Kasaragod, 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 two 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:
PW1, the Excise Inspector, Excise Circle Office, Hosdurg, and his party were on patrol at Chalingal in Chittari Village at about 11.00 a.m. on 04-11-1999. While so, the appellant was seen coming from the opposite side carrying a white jerrycan. Seeing the excise party, the appellant attempted to flee away. But, the excise party soon reached him and examined the five litre jerrycan carried by him when it was revealed that it contained about three litres of illicit arrack. Since the appellant had committed an offence under the Abkari Act, he was arrested by PW1 then and there preparing Ext.P1 Arrest Memo. PW1 had seized the jerrycan containing arrack under Ext.P2 Seizure Mahazar in the presence of witnesses. He had drawn about 300 ml. of arrack in a 375 ml. bottle as sample from the bulk contained in the jerrycan for the purpose of subjecting it to chemical analysis. The jerrycan containing arrack as well as the sample were sealed. Thereafter, PW1 reached the Excise Circle Office, Hosdurg, with the appellant, contraband and the records. Subsequently, after 2.00 p.m. on the same day, the appellant, contraband and the records were handed over to PW2, the Excise Inspector, Excise Range Office, Hosdurg. PW2 had registered Crime No.33 of 1999 of that Range Office in respect of the occurrence. Ext.P3 is the Crime and Occurrence Report thus prepared by PW2. He had produced the appellant before the court. He had also produced the contraband including sample along with Ext.P4 List of Property and the Forwarding Note. Ext.P5 is a copy of that Forwarding Note. PW4, the Village Officer, Chittari, had prepared Ext.P7 Scene Plan. PW3, the Excise Inspector, Excise Range Office, Hosdurg, had taken over the investigation of the case on 30-06-2000. 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-I, Hosdurg.
4. The learned Magistrate committed the case to the Court of Session, Kasaragod, and, from there, it was made over to the Assistant Sessions Court, Hosdurg. Later, the case was transferred to the Additional Sessions Court (Adhoc)II, Kasaragod. The court below framed a charge against the appellant alleging the offence under Section 55 (a) of the Abkari Act. The appellant had pleaded not guilty of the charge. The prosecution examined PWs.1 to 4 and marked Exts.P1 to P7 and MO1 on their side. The appellant was questioned under Section 313 of Cr.P.C. He denied all the incriminating circumstances shown against him. The defence had examined DW1. 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 about three litres of illicit arrack in a five litre jerrycan on 04-11-1999. Hence, he was arrested then and there and the contraband was seized under Ext.P2 Seizure Mahazar. It is also their case that PW1 had drawn a sample of about 300 ml. of arrack in a 375 ml. bottle from the bulk contained in MO1 jerrycan and both the sample and MO1 were sealed. It is specifically stated in Ext.P2 Seizure Mahazar that they were so sealed. The contraband along with the sample was produced before the court describing them in Ext.P4 List of Property. Ext.P4 also shows that the sample as well as MO1 were sealed. PW1 deposed also before the court that they were so sealed. He further stated that the seal so affixed was his personal seal.
6. 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 19.26% by volume of ethyl alcohol. It is also stated in Ext.P6 that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was provided? Was it the seal of the court or the sample of the seal affixed on the sample bottle by PW1? Ext.P5 is a copy of the Forwarding Note submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P5. Whether the sample seal was affixed on the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself. They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution. The matter does not end there.
7. Ext.P2 Seizure Mahazar does not contain the impression of the personal seal claimed to have been affixed by PW1 on the sample and the jerrycan. PW1 specifically admitted two things. (1) He had not taken the impression of the specimen seal on a separate paper. (2) He had not handed over the specimen seal to the office. Neither the prosecution nor PW1 has a case that PW1 had prepared the Forwarding Note in this case. PW2 specifically admitted that he had prepared the Forwarding Note in this case. So, Ext.P5 and its original sent to the Chemical Examiner were prepared only by PW2. In the light of the specific admission of PW1 that he had not handed over the seal affixed by him on the sample to the office and that he had not taken the impression of that seal on a paper, there was no chance at all for PW2 to affix the impression of that seal either on Ext.P5 copy of the Forwarding Note or on its original. Further, during his cross examination, PW2 specifically admitted that the specimen seal cannot be found in Ext.P5. That means, no sample seal has been affixed either on Ext.P5 or on its original. One more fact also has to be considered along with these facts. PW3, the Investigating Officer, deposed before the court that the seal used by PW1 was his personal seal and that seal was affixed on the Forwarding Note. But, such a statement did not find a place in the statement given by PW1 to PW3. The explanation offered by PW3 was that he had omitted to note down that. For the reasons already stated, it was impossible for PW1 to affix his personal seal on the Forwarding Note. Therefore, the deposition so given by PW3 before the court is considered in the light of the evidence given by PWs.1 and 2, the statement made by PW3 that PW1 stated to him that he had affixed his personal seal on the Forwarding Note was only an incorrect and baseless statement. In view of these facts, there is no assurance that the sample of the contraband allegedly seized by PW1 from the appellant had, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample of the seal affixed on the sample is 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.
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."
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, in the case on hand, Ext.P6 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt.
9. The Investigating Agency had not prepared a Scene Mahazar in this case. Ext.P7 is the Scene Plan prepared by PW4, the Village Officer, Chittari. He stated before the court that he had prepared Ext.P7 after examining the place based on the Mahazar given to him by the Excise Inspector. He did not say who was that Excise Inspector. That the identity of the Mahazar is also not evident from his deposition. Since only one Mahazar was prepared in this case, i.e., Ext.P2 Seizure Mahazar prepared by PW1, it can be presumed that the Mahazar mentioned in his evidence is Ext.P2. Is it possible to prepare a scene plan exactly showing the place of occurrence in this case ? In Ext.P7 Scene Plan, the place of occurrence is located as the place just on the northern side of the road and also just on the northern side of Vishnumoorthy Temple. How could PW4 locate the place of occurrence as shown in Ext.P7? According to him, he had located the place of occurrence based on Ext.P2 Seizure Mahazar. He specifically stated that the Excise Officer did not show him the place of occurrence. Going by the statements contained in Ext.P2, nobody can locate the place of occurrence as shown in Ext.P7. In the first paragraph of Ext.P2, it is stated that, that Mahazar was prepared at a place on the side of the road on the southern side of Vishnumoorthy Temple. That place is noted as the place where Ext.P2 was prepared and not as the place of occurrence. If the further statements contained in Ext.P2 are read, it is impossible to locate the place of occurrence. Then, no credibility can be given to Ext.P7 Scene Plan prepared by PW4 allegedly showing the place of occurrence. Therefore, the irresistible conclusion is that the prosecution failed to show the place of occurrence to the satisfaction of the court. This also throws shadow of doubt on the prosecution case of occurrence.
10. One more important aspect also has to be considered along with this. The prosecution case is that Ext.P2 Seizure Mahazar was prepared by PW1 in the presence of two independent witnesses. Their names appeared in Ext.P2. They are cited by the prosecution as CWs.3 and 4. But, curiously enough, both of them were not examined by the prosecution. Moreover, it is the case of the prosecution that some other excise officials apart from PW1 were also present at the time of the alleged detection of the offence. Out of them, CW2 alone was cited as a witness. But, he was not examined by the prosecution. The only evidence available, as that of an occurrence witness, is the evidence of PW1. In the light of the facts and circumstances already adverted to in this judgment, it is totally unsafe to rely on the testimony of PW1 for finding the appellant guilty of a serious offence under Section 55(a) of the Abkari Act alleged against him.
11. The alleged occurrence was on 04-11-1999. PW1 handed over the accused, contraband and the records to PW2 on that day itself. PW2 was the Excise Inspector, Excise Range Office, Hosdurg, at that time. So, he was a competent Abkari Officer to conduct investigation of this case. Why he had not conducted investigation? The prosecution has not given any explanation as to why PW2 had not conducted investigation. Thereafter, when the investigation had taken place? PW3 stated that he had taken over the investigation of this case on 30-6-2000, i.e., after a period of about 8 months.