K.Janaki vs Excise Inspector
2021 Latest Caselaw 20616 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE GOPINATH P.
      TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                          CRL.A NO. 2247 OF 2006
  AGAINST THE JUDGMENT IN SC 349/2005 OF ADDITIONAL SESSIONS COURT
                         (ADHOC-III), KASARAGODE.
APPELLANT/ACCUSED:

           K.JANAKI
           AGED 51 YEARS, RESIDING AT MOOLAKKANDAM,, AJANUR VILLAGE,
           HOSDURG TALUK.

           BY ADV SRI.M.SANTHOSHKUMAR



RESPONDENT/RESPONDENT:

           THE EXCISE INSPECTOR
           HOSDURG RANGE IN O.R.NO.14/2002,, REP. BY PUBLIC
           PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

           BY ADV.SANGEETHARAJ, PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 2247 OF 2006                 2



                                   JUDGMENT

This appeal has been filed challenging the conviction and sentence

imposed on the appellant/accused in S.C. No.349 of 2005 on the file of the

Additional Sessions Judge (Ad Hoc)-III, Kasaragod in a prosecution under

Section 55(g) of the Abkari Act.

2. Gist of the prosecution case is that, on 21.03.2002, at about 05.30

pm, the appellant/accused was found transporting 10 litres of wash in a black

plastic pot, for the purpose of distilling illicit arrack and thereby, she

committed the offence under the aforesaid provision of the Abkari Act.

3. Following investigation of the case, a final report was filed before

the Judicial First Class Magistrate Court-I, Hosdurg, from where it was

committed to the Principal Sessions Court, Kasaragod as the offence was

triable exclusively by a Court of Sessions. The matter was made over by the

Principal Sessions Court to the Additional Sessions Court, (Ad Hoc)-III, for

trial and disposal. Charges were framed against the appellant/accused under

Section 55(g) of the Abkari Act. The appellant/accused pleaded not guilty. The

prosecution led evidence by PWs 1 to 7, marking Exts.P1 to P8 documents and

identifying the Material Object -MO1. Following closure of the prosecution

evidence, appellant/accused was questioned under Section 313 of the Cr.P.C.

She denied all incriminating materials appearing against her. However, the

appellant/accused did not adduce any evidence .

4. On a consideration of the matter, the trial court came to the

conclusion that prosecution has succeeded in establishing the guilt of the

accused and convicted the accused under Section 55(g) of the Abkari Act. After

hearing the appellant/accused on the question of sentence, she was sentenced

to undergo simple imprisonment for a period of four years and to pay a fine of

Rs.1,00,000/-. In default of payment of fine, she was directed to undergo

simple imprisonment for a further period of six months. Set off was permitted

in accordance with law.

5. On a perusal of the records in this case, I find that this is a case

where Ext.P7 seizure mahazar prepared at the time of the seizure of the

contraband from the appellant/accused neither contains the description of the

seal used on the samples taken from the contraband seized from the

appellant/accused nor does it contain the sample of the seal itself. This Court

in Bhaskaran K. V. State of Kerala and Another [2020 KHC 5296]

held as follows:-

"21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala:2016 (1) KLD 391: ILR 2016(2) Ker

145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector: 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014 (1) KLT 506).

22. .xxx xxx xxx

23. It is not the case of the prosecution that there was no other officer available to conduct the investigation. It is also not the case of the prosecution that for some other reason PW5 was compelled to conduct the entire investigation and to file final report against the accused. It is a case in which, without any exigencies of the situation, the detecting officer who registered the case himself conducted the entire investigation and filed final report. In view of the infirmities pointed out earlier with regard to the arrest of the accused and the steps taken for forwarding the sample for analysis, the "one man show" conducted by PW5 has definitely caused prejudice to the accused."

The seizure mahazar must contain either a description of the seal used to seal

the samples or the sample of the seal itself to ensure that the prosecution is

able to establish the crucial link between the contraband seized from the

accused and the chemical analysis report. The failure to describe the seal or to

provide the sample of the seal used in the samples taken at the time of seizure

in Ext.P7 seizure mahazar is therefore fatal to the prosecution case. In that

view of the matter, this appeal is liable to be allowed.

In the result, the appeal is allowed and the conviction and sentence

imposed on the accused in S.C. No.349 of 2005 on the file of the Additional

Sessions Judge (Ad Hoc) III, Kasaragode is set aside. The appellant/accused

will stand acquitted.

SD/-

GOPINATH P.

JUDGE ajt