Ayyappan vs The Excise Inspector
2021 Latest Caselaw 18272 Ker

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
     TUESDAY, THE 7TH DAY OF SEPTEMBER 2021 / 16TH BHADRA, 1943
                          CRL.A NO. 839 OF 2007
 AGAINST THE JUDGMENT DATED 28-04-2007 IN SC 235/2006 OF ADDITIONAL
         DISTRICT & SESSIONS COURT (ADHOC)-I, MANJERI, MALAPPURAM
APPELLANT/ACCUSED:

             AYYAPPAN
             S/O. ARANHIKKAL VELU,
             PORUR AMSOM, VEETHANASSERI DESOM.

             BY ADVS.
             K.M.SATHYANATHA MENON
             M.V.ANANDAN
             S.SMITHA (PARAKKAL)



RESPONDENTS/COMPLAINANT/STATE:

     1       THE EXCISE INSPECTOR,
             EXCISE RANGE OFFICE, KALIKAVU,, MALAPPURAM DISTRICT.

     2       THE STATE OF KERALA
             REPRESENTED BY THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY ADV SRI.SANGEETH RAJ, PUBLIC PROSECUTOR


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.09.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.839/2007                 -2-

                                  JUDGMENT

This appeal has been filed challenging conviction and sentence imposed on the

appellant/accused in S.C No.235/2006 on the file of Additional District and Sessions

Judge (ad-hoc)-I, Manjeri Division for an offence under Section 55 (a) of the Abkari

Act. The gist of the prosecution case is that on 05-01-2004 at about 12.30 p.m, on a

public footpath in Veethanasseri desom of Nilumbur Taluk, the accused was found

carrying 32 litres of wash (used for the manufacture of arrack) in two plastic pots and

thereby he committed the offence under Section 55 (g) of the Abkari Act.

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

Judicial First Class Magistrate Court-II, Perinthalmanna from where it was committed

for trial to the Sessions Court. Charges were framed by the Additional Sessions Judge

(adhoc)-I, Manjeri for an offence under Section 55 (g) of the Abkari Act. Following

trial, the appellant/accused was found guilty and sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default of

payment of fine to undergo rigorous imprisonment for 6 months.

3. The learned counsel for the appellant submits that there are

contradictions in the evidence tendered by PW1, the detecting officer and PW4 the

investigating officer, in as much as they have given different versions regarding the

preparation of the forwarding note through which the samples were sent for analysis.

He also submits that the independent witnesses turned hostile and did not support the

prosecution case. It is his further submission that the taking of samples was also

against the procedure prescribed in the Excise Manual which requires 3 samples to be

taken. He states that the evidence in this case will show that only one sample was

taken by the detecting officer. The learned Public Prosecutor would contend that there

is no material contradiction in the evidence tendered by PW1 & PW4 to the extent that

it would completely destroy the prosecution case. The only contradiction pointed out,

according to him, is the identity of the person who prepared the forwarding note and

this by itself cannot demolish the prosecution case. In so far as the taking of samples

are concerned he supports the view taken by the trial Judge and states that mere

failure to follow the provisions of the Excise Manual will not in itself render the

prosecution case invalid. He also states that the fact that the independent witnesses

turned hostile does not mean that the prosecution must fail

4. I have considered the contentions raised. I have also perused Ext.P6

forwarding note and Ext.P2 mahazer. It is settled law that samples which are sent for

chemical analysis must be clearly identified with the materials seized from the accused

at the time of detection. It is for this purpose that courts have insisted that the sample

of the seal affixed on the samples must find a place in the mahazer and in the

forwarding note so as to ensure that there is no dispute regarding the identity of the

sample. Exhibit P2 mahazer will show that there is no mention of the nature of the seal

affixed on the sample. It only states that a seal was affixed. However in Ext.P6

forwarding note a sample seal having the alphabets 'K & B' are seen affixed as the

sample of the seal affixed on the samples forwarded for chemical examination. That by

itself does not establish the identify of the sample drawn for chemical analysis with the

contraband seized from the appellant/accused. I am satisfied that the learned counsel

for the appellant/accused is right in contending that the same does not bear the

sample of the seal nor any description of the seal with clarity enabling this Court to

reach a conclusion that the identity of the sample with the contraband article seized

from the appellant/accused has not been compromised. 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. "

I am therefore of the view that without going to any other point the appellant/accused

is entitled to be acquitted.

In the result this appeal is allowed. The conviction and sentence imposed on the

appellant in S.C No.235/2006 on the file of Additional District and Sessions Judge,

(ad-hoc)-I, Manjeri Division will stand set aside. The appellant/accused will stand

acquitted.

Sd/-

GOPINATH P.

JUDGE

AMG