Anil Kumar vs The Sub Inspector Of Police
2021 Latest Caselaw 9405 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

          THE HONOURABLE MRS. JUSTICE MARY JOSEPH

  MONDAY, THE 22ND DAY OF MARCH 2021 / 1ST CHAITHRA, 1943

                     CRL.A.No.2491 OF 2006

AGAINST THE JUDGMENT IN SESSIONS CASE No.822/2001 DATED 30-
11-2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT(ADHOC)-I,
                          KOLLAM

  (C.P NO. 49/1999 OF JUDICIAL MAGISTRATE OF FIRST CLASS,
                         PARAVOOR)


APPELLANT/ACCUSED:

            ANIL KUMAR,
            S/O. BHADRAN,
            KEELATHENGIL VEEDU,, THEKKEVILA CHERRY,
            MUNDAKKAL VILLAGE, KOLLAM.

            BY ADV. SRI.S.SANTHOSH KUMAR

RESPONDENT/S:

            THE SUB INSPECTOR OF POLICE,
            PARAVOOR POLICE STATION, KOLLAM,
            REPRESENTED BY THE PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.

            R1 BY PUBLIC PROSECUTOR

THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
13.01.2021, THE COURT ON 22-03-2021 DELIVERED THE FOLLOWING:
 Crl.Appeal No.2491 of 2006
                                   -:2:-




                           MARY JOSEPH, J.
                 ------------------------
                     Crl.Appeal No.2491 of 2006
                 ------------------------
                 Dated this the 22nd day of March, 2021


                               JUDGMENT

The appeal on hand is directed against judgment dated

30.11.2006 of Additional District and Sessions Judge (adhoc) Court-I,

Kollam (for short, 'the trial court') in S.C No.822 of 2001. By the

impugned judgment, the trial court found the accused guilty and

convicted and sentenced him to undergo Rigorous Imprisonment for a

period of 1 year and to pay fine of Rs.1,00,000/-(Rupees one lakh only)

under Section 55(i) of the Abkari Act (for short, 'the Act'). The accused

is the appellant. The contention of the learned counsel for the

appellant was that the prosecution case is vitiated for non-production

of forwarding note in evidence, unexplained delay in production of

properties seized before the court as well as the Chemical Examiner's

Laboratory and conduct of detection and investigation by one and the

same officer.

2. The learned counsel has relied on Vijayan @Pattalam

Vijayan and Another V. State of Kerala [2018(2) KHC 814], Crl.Appeal No.2491 of 2006

Krishnankutty @ Appu V. State of Kerala [2018 (5) KHC 463]

and Gireesh V. State of Kerala [2019 (4) KLT 79] to rest his

contentions.

3. The learned Public Prosecutor on the contrary has

submitted that the argument advanced by the learned counsel for the

appellant that the prosecution is vitiated for conduct of detection and

investigation by the very same officer, will not sustain. According to

him, the dictum in Krishnankutty @ Appu supra relied on by the

learned counsel for the accused was laid by a Single Judge of this Court

relying on Mohan Lal V. State of Punjab [2018 (4) KHC 387],

which stands overruled by the Apex Court in Mukesh Singh V. State

(Narcotic Branch of Delhi) [(2020) 10 SCC 120].

4. In the backdrop of the rival arguments advanced by the

parties, the primary venture of this court is to narrate the facts and the

evidence adduced by the prosecution as well as the defence in the case

on hand:

At 10.45 p.m on 19.04.1999, the accused was found in

possession of and engaged in the sale of some liquor. The accused was

found on the back side of the compound wall of toddy shop bearing

No.91 situated in building 'Ramanilayam'-No.24/259 in Paravoor Crl.Appeal No.2491 of 2006

Municipality. On being convinced from the preliminary examination

held that the liquor contained in 50 plastic covers was arrack, the

accused was arrested. He was produced before Judicial First Class

Magistrate Court, Paravoor on 20.04.1999 and was remanded to

judicial custody. The contraband alongwith the sample drawn from the

spot were forwarded to the court. On completion of the investigation, a

Final Report, chargesheeting the accused for offences punishable under

Section 55 (a) and (i) of the Act was prepared and laid before Judicial

First Class Magistrate Court, Paravoor. The offences for which the

accused stands chargesheeted by the Final Report being exclusively

triable by Court of Sessions, the case was committed thereto by the

Magistrate vide order passed on 19.10.2000 in C.P No.49/1999. The

case was then made over to Principal Assistant Sessions Judge, Kollam

and thereafter was transferred to the trial court for trial and disposal.

5. The accused entered appearance on service of summons on

him. After holding a preliminary hearing of the prosecution as well as

the accused, charge was framed against him for the offences punishable

under Sections 55 (a) and (i) of the Act. It when read over and

explained by the trial court, the accused pleaded not guilty. The trial

was scheduled and held in the above circumstances. Crl.Appeal No.2491 of 2006

6. On the side of the prosecution, PWs 1 to 5 were examined

and Exts.P1 to P5 and MO I and MO II were marked. On closure of the

prosecution evidence, the accused was questioned under Section 313 (1)

(b) Cr.P.C, on the basis of the incriminating circumstances brought

against him in evidence by the prosecution. The prosecution then was

heard under Section 232 Cr.P.C. Grounds having not been made out to

record an order of acquittal in favour of the accused, he was called

upon to enter on his defence. He did not adduce any evidence in

defence. The evidence adduced by the prosecution was appreciated by

the trial court and a finding of guilt of the accused for an offence

punishable under Section 55(i) of the Act was arrived at. Thereupon,

the accused was convicted and sentenced to undergo punishment.

7. In a case wherein the defence failed to adduce any evidence,

the trial court has only to reach a conclusion after appreciating the

evidence of the prosecution alone, which consist of depositions of PWs

1 to 5, documentary evidence of Exts.P1 to P5 and material objects

marked as MO I and MO II. It is pertinent to note from a glance at the

depositions of PW2, PW3 and PW4 that all of them were independent

witnesses of the prosecution but by denying to have witnessed the

seizure of the contraband, they turned hostile to the prosecution. PW1 Crl.Appeal No.2491 of 2006

is none other than a Police Constable of Paravoor Police Station

attached to the team headed by PW5, who detected the offence. PW5 is

none other than the Sub Inspector of Police, Paravoor and has stated

that while on patrol duty, an information was received by him that

somebody was engaged in the sale of arrack near the Municipal Private

bus stand on the back side of the compound wall of toddy shop No.91.

Consequent to the information, alongwith a team of Officers, he

proceeded to the spot and reached there. Three persons were found

standing on the eastern corner of the compound wall, one holding an

yellow kit. On watching the officers proceeding towards, all of them

attempted to escape. One who carried the yellow kit had thrown it away

on his struggle to escape. He was chased and caught. Others jumped

the compound wall and escaped. The accused caught was interrogated

by PW5. The yellow kit was seized and opened. It was found to contain

50 plastic covers filled with some liquor. One cover was opened by

PW5 and the liquor was poured into a glass of 150ml capacity. The

liquor was smelled, tasted and identified as arrack. PW1 was also made

to smell and taste it. From a house situated nearby, a basin was

brought. All the 50 covers were opened and the liquor therefrom was

poured into the basin. 375 ml was taken as sample and the residue was Crl.Appeal No.2491 of 2006

poured into a Can having capacity of 10 liters. The sample alongwith

the residue were sealed at the spot itself and the accused was also

arrested. Rs.750/- was seized from the pocket of the shirt worn by the

accused. Signatures were put by PW5 and independent witnesses

available there on a label and that was affixed on the Can. The accused

alongwith the sample and the residue left were taken to the Police

Station and there, Crime No.114/1999 was registered against the

accused. The accused was sent to the court alongwith a remand

application on 20.04.1999. Three persons were arrayed as accused in

the FIR but during the course of investigation, the names of two were

deleted on the basis of the information collected that those were

available at the spot of seizure only for consumption of liquor. A

forwarding note demanding chemical examination of the sample was

prepared. The sample was forwarded to the Chemical Examiner's

Laboratory alongwith the forwarding note. Certificate of Analysis was

obtained from the Chemical Examiner, wherein the sample examined

was certified as containing 24.71% by volume of Ethyl Alcohol.

Thereupon, a Final Report was prepared chargesheeting the accused for

offences under Sections 55(a) and (i) of the Act and laid before the

court.

Crl.Appeal No.2491 of 2006

8. During examination under Section 313 (1)(b) Cr.P.C, the

accused has explained his presence at the spot as for consumption of

liquor. According to him, two others were also there, but could not be

caught by the Officers.

9. The contention firstly advanced by the learned counsel for

the appellant was that forwarding note is not forthcoming in evidence.

As already stated, Exts.P1 to P5 alone were brought on record in

evidence by the prosecution and forwarding note is not produced as

rightly putforth by the learned counsel for the appellant. In Vijayan

supra, this Court has observed that when the forwarding note

containing the sample seal impression was not made available to the

Chemical Examiner's Laboratory, the reference made in the Certificate of

Analysis that the sample forwarded for analysis was identified on the basis

of the sample seal impression provided, will be of no basis and that will

create a room for doubt about the identity of the sample. In Gireesh

supra, this Court has held that in the absence of a forwarding note

marked in evidence, the prosecution cannot be said to have proved it's

case beyond reasonable doubt. Therefore, it cannot be held that the

sample received and examined by the Chemical Examiner was the one

drawn from the liquor seized by PW5 from the spot on 19.04.1999. Crl.Appeal No.2491 of 2006

10. The forwarding note is nothing but a requisition of the

Investigating Officer to the court to forward the sample taken from the

contraband seized, for Chemical analysis. In prosecutions under the

Act, the sample of the contraband will normally be forwarded to the

Chemical Examiner's Laboratory alongwith a forwarding note. It

provides in itself a space for affixture of an impression of the sample

seal, which had already been affixed by the Detecting Officer on the

contraband and the sample taken from the spot of seizure. Therefore,

on the strength of the sample seal impression in the forwarding note,

the Chemical Examiner would be able to identify the sample forwarded

to it for analysis as the one drawn from the contraband liquor seized

from the spot. Therefore, the sample forwarded to the Chemical

Examiner's Laboratory could easily be identified by the Chemical

Examiner, if the impression of the sample seal is affixed in the

forwarding note.

11. In the case on hand, forwarding note did not form part of

the evidence adduced by the prosecution. Therefore, evenif, the

Detecting Officer has got a case that a forwarding note was prepared by

him during the course of investigation and produced before the court

for the purpose of forwarding the sample to the chemical Examiner's Crl.Appeal No.2491 of 2006

Laboratory for Chemical Examination, in the event of it not being

marked in evidence, a claim cannot be raised by the prosecution that

the sample examined by the Chemical Examiner was the same as the

one drawn from the contraband seized.

12. Context being so, there is every justification for the defence

to raise a contention that the sample examined by the Chemical

Examiner was not the one drawn from the liquor seized from the spot.

Tampering, if pleaded by the defence also cannot be ruled out. In the

circumstances, there is every scope for a doubt to arise in the mind of

the court and that necessarily has to be given in favour of the accused as

was done by different benches of this Court in Gireesh and Vijayan

supra.

13. The second contention was regarding the delay occurred in

forwarding the sample to the court and to the Chemical Examiner's

Laboratory for examination. It is contended by the learned counsel

that inordinate delay of almost one month was occurred in the process

of forwarding of the sample to the court and to get the same examined

at the Chemical Examiner's Laboratory. On a scrutiny of the evidence

tendered by PW1 and PW5, this Court is also convinced that, a cogent

explanation for the delay is not furnished.

Crl.Appeal No.2491 of 2006

14. The offence was detected on 19.04.1999. List of property

marked in evidence as Ext.P4 is dated 18.05.1999. The sample was

found received by the Chemical Examiner's Laboratory for analysis on

19.05.1999. Therefore, there was delay of almost one month in

forwarding the properties to the court and therefrom to the Chemical

Examiner. Ext.P5, the Certificate of Chemical Analysis is dated

22.06.1999. Since the forwarding note was not marked in evidence,

this Court is not in a position to say, the date on which the sample was

forwarded to the court. However, inordinate delay was occurred in

production of the properties before the court. Therefore, as rightly

pointed out by the learned counsel, the prosecution and the trial held

against the accused is vitiated. There is absolutely no evidence

forthcoming from PW1 or PW5 regarding the safe custody of the

properties. Any evidence on affixture of sample seal on the properties

from the spot is not forthcoming. When evidence regarding the safe

custody of the properties is lacking, there is every scope for a doubt to

arise on the identity of the properties and it must go in favour of the

accused.

15. The third argument was that the Detecting as well as the

Investigating Officer in the prosecution being one and the same person Crl.Appeal No.2491 of 2006

the trial is vitiated. The learned counsel has also relied on the dictum in

Krishnankutty supra. The Apex Court has held in Mohan Lal's case

supra that if the informant and investigating officer are one and the

same person, the investigation is defective and vitiated because of

infraction of constitutional guarantee of fair investigation and

therefore, the judgment by which the accused stands convicted is

unsustainable.

16. The Apex Court has held in Mukesh Singh supra that

investigation by an Officer, who himself is informant/complainant in

the case is not barred under the NDPS Act or the Cr.P.C. The court held

that in a case wherein informant officer himself is the investigator, that

by itself cannot be said to be a ground to hold the investigation as

vitiated for the reason of bias or other allied factors. Thus Mohan Lal

supra and other cases having the same impact are overruled. The

dictum in Krishnankutty was laid by a Single Bench relying on

Mohan Lal supra and therefore, it also stands overruled. The

argument of the learned counsel for the defence that the informant and

the investigating officer being the same person, the investigation is

unfair and the accused is entitled to an order of acquittal is discarded

being untenable.

Crl.Appeal No.2491 of 2006

17. On the basis of the discussions made hereinabove this Court

has no hesitation to hold that the appellant is entitled to get the benefit

of doubt and consequently to an order of acquittal.

In the result, appeal is allowed. The impugned order

finding the accused guilty for the offence under Section 55(i) of the Act,

convicting and sentencing him, is set aside. The bail bond of the

accused is cancelled and he is set at liberty forthwith.

Sd/-

MARY JOSEPH, JUDGE

JJ