Kerala High Court
Gopalakrishnan vs The Excise Inspector on 22 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 22ND DAY OF JULY 2021 / 31ST ASHADHA, 1943
CRL.A NO. 2518 OF 2006
AGAINST THE JUDGMENT IN SC 324/2005 OF ADDITIONAL SESSIONS JUDGE
(ADOHOC)- MANJERI, MALAPPURAM
APPELLANT/ACCUSED:
GOPALAKRISHNAN
S/O.KUNHUPILLAI, KIZHAKKEVALAYATTU VEEDU,
PAYAMBA,, PALEMAD P.O., EDAKKARA,
MALAPPURAM DISTRICT.
BY ADV
SRI.K.M.SATHYANATHA MENON
RESPONDENTS/COMPLAINANT AND STATE:
1 THE EXCISE INSPECTOR
EXCISE RANGE OFFICE, NILAMBUR.
2 THE STATE OF KERALA REPRESENTED BY
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
HIGH COURT BUILDINGS, HIGH COURT ROAD,
ERNAKULAM, KOCHI-682 031.
BY ADV PUBLIC PROSECUTOR
SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2518 OF 2006
2
K. BABU, J.
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Crl.A. No. 2518 of 2006
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Dated this the 22th day of July, 2021
JUDGMENT
Aggrieved by the judgment dated 01.12.2006 passed by the
learned Additional Sessions Judge (Adhoc)-I, Manjeri, in SC
No.324/2005, the accused has preferred this appeal.
2. The accused was convicted of the offence punishable
under Section 8(2) of Abkari Act, by the trial court.
3. The prosecution case is that on 24.08.2003 at 11.30 a.m.
the accused was found in possession of transiting 10 litres of illicit
arrack in a plastic can through a panchayat road near
Kalakkanpuzha, Nilambur.
4. After completion of investigation, final report was
submitted against the accused for the offence punishable under
Section 8(2) of Abkari Act, before the Judicial First Class Magistrate
Court, Nilambur. The case was committed to the Sessions Court,
Manjeri from where it was made over to the Additional Sessions Court,
CRL.A NO. 2518 OF 2006
Ad Hoc-I, Manjeri. On appearance of the accused charge was framed
against him for the offence punishable under Section 8(2) of Abkari
Act. The accused pleaded not guilty and therefore, he came to be
tried by the trial court for the aforesaid offence.
5. The evidence for the prosecution consists of the oral
evidence of PWs 1 to 4, Exts. P1 to P8 and Mos 1 and 2.
6. After closure of the evidence on behalf of the prosecution
the statement of the accused under Section 313 Cr.P.C. was recorded.
He pleaded innocence. The trail court heard the matter under Section
232 Cr.P.C. and found that there was evidence against the accused
and hence he was called up on to enter on his defence and to adduce
evidence, if any, he may have in support thereof. The trial court after
hearing arguments from both sides found that the accused is guilty of
Section 8(2) of Abkari Act and he was convicted thereunder. The
accused was sentenced to undergo rigorous imprisonment for a term
of two years and to pay a fine of Rs.1 Lakh.
7. Heard Sri. Sathianatha Menon, the learned counsel
appearing for the appellants/accused and Sri.M.S.Breez, the learned
Senior Public Prosecutor appearing for the respondents.
CRL.A NO. 2518 OF 2006
8. The learned counsel for the appellant/accused contended
as follows:-
(a) The delay in the production of the properties, including the
bottle containing the sample, has not been satisfactorily explained by
the prosecution.
(b) The prosecution could not satisfactorily establish that the
contraband substance said to have been seized from the place of
occurrence eventually reached the Chemical Examiner's laboratory.
9. The learned Public Prosecutor, per contra, submitted that
the prosecution could establish the charge against the accused.
10. The only point arises for consideration is whether the
conviction entered and sentence passed against the accused are
sustainable or not.
THE POINTS
11. PW 1, the Excise Inspector, Nilambur Excise Range
detected the offence. PW 1 has given evidence that on 24.08.2003 at
about 11.30 a.m. the accused was found in possession of 10 litres of
CRL.A NO. 2518 OF 2006
illicit arrack in a plastic can at Kalakkanuzha. PW 1 seized the
contraband substance from the possession of the accused and he
was arrested. PW 1 prepared Ext.P2 Seizure Mahazar. PW 1
collected 375 ml from the contraband substance in a bottle and
sealed the same.
12. PW 3, the Assistant Excise Inspector, who had
accompanied PW 1 in the search and seizure, has given evidence in
support of the prosecution.
13. PW 2, the independent witness, did not support the
prosecution.
14. PW 4, the then Excise Circle Inspector, Nilambur Excise
Range, conducted the investigation and submitted the final report.
15. The learned counsel for the appellant/accused submitted
that the delay in the production of the properties including the bottle
containing the sample before the court has not been satisfactorily
explained.
16. PW 1, the detecting officer, has given evidence that the
accused was produced before the Judicial First Class Magistrate
CRL.A NO. 2518 OF 2006
Court on 24.08.2003 itself. He was not sure as to the time at which
the accused was produced before the court. PW 1 has further given
evidence that the properties recovered from the possession of the
accused, including the bottle containing the sample, were also
produced before the court on 24.08.2003 itself. Ext.P5, the list of
Thondi articles produced before the court, would show that the
properties including the bottle containing the sample were produced
before the court on 25.08.2003. The explanation of PW 1 to the effect
that he had produced the bottle containing the sample before the court
on 24.08.2003 is not acceptable in view of the specific entry in Ext.P5
that the properties were received by the Junior Superintendent of
court on 25.08.2003. The prosecution has not offered any satisfactory
explanation for this discrepancy in the evidence regarding the
production of the bottle containing the sample before the court. A
question arises as to what prevented PW 1, the detecting officer, to
produce the bottle containing the sample on 24.08.2003.
17. On the question of delay in the production of the
properties, the Division Bench of this Court in Ravi v. State of Kerala
& another [2011 (3) KHC 121] held thus:
"1.It is not necessary to produce the article seized under Section 34
of the Abkari Act before the Magistrate "forthwith" either by virtue of
CRL.A NO. 2518 OF 2006
Section 102(3) Cr.P.C or by virtue of any of the provisions of the
Abkari Act or the Abkari Manual. What is enjoined by the statute is
only that the seizure of the property should be reported forthwith to
the Court. But we hasten to add that the production of the property
before Court (wherever it is practicable) should also take place
without unnecessary delay. There should be explanation for the
delay when there is delayed production of the property." (Emphasis
supplied)
18. The Division Bench held that the production of the
property before the court should take place without unnecessary delay
and there should be explanation for the delay when there is delayed
production of the property. In the instant case there is no satisfactory
explanation for the delay in the production of the property. The
unexplained delay in the production of properties would lead to the
conclusion that tampering with the samples could not be ruled out.
19. The learned counsel for the accused further contended
that the prosecution failed to establish that the contraband substance
allegedly seized from the possession of the accused eventually
reached the Chemical Examiner's Laboratory. The learned counsel for
the appellant relied on the following circumstances to substantiate his
contention:-
(I) Ext.P2 Seizure Mahazar is silent regarding the
nature and description of the seal stated to
CRL.A NO. 2518 OF 2006
have been affixed on the bottle containing the
sample.
(II) The prosecution failed to explain the custody
of the bottle containing the sample till it reached
the court on 25.08.2008.
20. I have gone through Ext.P2 Seizure Mahazar, the
contemporaneous document evidencing seizure and drawing of
sample. The nature and description of the seal used is silent in Ext.P2.
21. In Bhaskaran K. v. State of Kerala and another [2020 KHC
5296] this court has held that the nature of the seal used shall be
mentioned in the seizure mahazar.
22. PW 1, the detecting officer, has given evidence that the
bottle containing the sample was produced before the court on
24.08.200. As mentioned above, Ext.P5, the list of Thondi articles
produced before the court, shows that the properties including the
bottle containing the sample, were produced before the court only on
25.08.2003 whereas the specific case of PW 1 is that, he had
produced the same on 24.08.2003. This court in the dark as to who
CRL.A NO. 2518 OF 2006
had been in possession of the bottle containing the sample till the
same was produced before the court on 25.08.2003.
23. Ext.P5 list of property would further show that the bottle
containing the sample was received by the Junior Superintendent of
the Court on 25.08.2003. Ext.P7 certificate of the chemical analysis
shows that the bottle containing the sample was forwarded to
chemical analysis by letter dated 26.08.2003 of the Judicial First Class
Magistrate Court, Nilambur. The sample was delivered to the
Chemical Examiner by an Excise Guard by name Usman. Ext.P6, the
copy of the forwarding note, would not show as to whether Sri.Usman
had received the bottle containing the sample from the court. There is
no convincing evidence before the court as to who had handed over
the bottle containing the sample to the Excise Official deputed to
receive the same from the court. The prosecution has not produced
convincing evidence to show that during the period from 24.08.2003 to
27.08.2003 (the date on which the sample was delivered to the
Chemical Examiner's laboratory) the sample remained tamper proof.
24. The bottle containing the sample, after recovery, remained
in the possession of an Excise Official the name of whom is known to
CRL.A NO. 2518 OF 2006
this Court. The sample was received by the Junior Superintendent of
Court. It was handed over to another Excise Official to deliver the
same to the Chemical Examiner's Laboratory. The sample was
delivered to the laboratory by Sri. Usman, an Excise Guard. There is
no evidence to show as to who produced the articles, including the
sample before the Court and also as to who handed over the bottle
containing the sample to the Excise Official concerned for delivering
the same to the Chemical Examiner's Laboratory. The indisputable
position is that the bottle containing the sample changed several
hands. None of these witnesses have been examined by the
prosecution to establish that while in their custody the seals were not
tampered. The consequence of this omission is that the prosecution
failed to rule out the possibility of the sample being changed or
tampered with during the period - a fact which had to be proved
affirmatively by the prosecution.
25. While dealing with a similar fact situation in which the
sample changed several hands, in State of Rajasthan v. Daulat Ram
[(1980) (3 SCC) 303], the Apex Court held that non examination of the
officials who handled the sample during different stages is fatal to the
prosecution.
CRL.A NO. 2518 OF 2006
26. The inevitable conclusion resulting from the infirmity
discussed above, is that there is no assurance that the sample stated
to have been drawn by the Detecting Officer from the bulk quantity of
the liquor allegedly recovered from the possession of accused was
actually subjected to analysis in the Chemical Examiner's Laboratory.
In the absence of any convincing evidence as to the tamper proof
despatch of the sample to the laboratory no evidentiary value can be
attached to Ext.P7 certificate of chemical analysis.
27. In Vijay Pandey v. State of U.P. [ AIR 2019 SC 3569], the Apex
Court held that mere production of the laboratory report that the
sample tested was contraband substance cannot be conclusive proof
by itself. The sample seized and that tested have to be co-related.
28. In the instant case, the prosecution was unable to
establish the link connecting the accused with the contraband seized
and the sample analysed in the laboratory. The accused is entitled to
benefit of doubt arising from the absence of link evidence as
discussed above.
29. The up shot of the above discussion is that the conviction
entered by the Court below overlooking these vital aspects of the
CRL.A NO. 2518 OF 2006
matter cannot therefore be sustained. The appellant/accused is
therefore not guilty of the offence punishable under Section 8(2) of the
Abkari Act. He is acquitted of the charge levelled against him. He is
set at liberty.
The Criminal Appeal is allowed accordingly.
Sd/-
K. BABU
JUDGE
VPK
