Raveendran vs State Of Kerala
2022 Latest Caselaw 1439 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
             THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
     WEDNESDAY, THE 2ND DAY OF FEBRUARY 2022 / 13TH MAGHA, 1943
                          CRL.A NO. 1051 OF 2007
 [AGAINST THE JUDGMENT DATED 4.5.2007 IN SC 1025/2001 OF ADDITIONAL
  SESSIONS JUDGE FOR THE TRIAL OF ABKARI ACT CASES, NEYYATTINKARA]
APPELLANT/ACCUSED:

           RAVEENDRAN, S/O.THANKAPPAN,
           PUTHEUVEL PUTHEN VEEDU, KALLUVILA, MELEVILAKOM, KAZHIVOOR
           DESOM, KANJIRAMKULAM VILLAGE.

           BY ADV SRI.BLAZE K.JOSE



RESPONDENT/COMPLAINANT:

           STATE OF KERALA REPRESENTED BY
           THE EXCISE INSPECTOR, EXCISE RANGE, NEYYATTINKARA REP. BY
           PUBLIC PROSECUTOR, HIGH COURT OF KERALA.

           BY SRI.RANJIT GEORGE, PP


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2022,
THE COURT ON 2.2.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.1051 of 2007                2




                                   JUDGMENT

The accused in S.C.No.1025/2001 on the file of

the Additional Sessions Judge for the trial of

Abkari Act cases, Neyyattinkara is the appellant

herein. This appeal is filed by him being aggrieved

by the conviction and sentence imposed upon him by

the said court for the offence punishable under

section 58(a) of the Abkari act. The sentence

imposed upon him is rigorous imprisonment for one

year and a fine of Rs.1,00,000/- with a default

sentence of rigorous imprisonment for a period of

three months.

2. The prosecution case is as follows:

On 21.05.1998 at 12.30. PM, the Preventive

Officer of the Neyyattinkara Excise Range Office

while conducting patrol duty at Marappalam-

Nellimoodu road near Marappalam junction, found the

accused/appellant carrying a can which is having

the capacity to contain 5 litres. As the movements

of the appellant was suspicious, the Excise team

approached him and questioned. Thereupon, on

examining the contents of the can which the

appellant was carrying, it was revealed that, it

contains a liquid. The quantity found therein was

1½ liters. From the smell and taste of the said

liquid, the inspection team realized that it was

arrack and accordingly, the appellant was arrested

from the spot. The can along with the liquid was

seized and seals were affixed thereon. Immediately

thereupon seizure mahazar and arrest memo were

prepared. On the basis of the same, Crime No.16/98

was registered by the Excise Range office,

Neyyattinkara and the accused as well as the

articles seized were produced before the Magistrate

on the very same date. Later, upon completing

the investigation thereon, final report was

submitted which was taken into file by the Judicial

First Class Magistrate-II, Neyyattinkara as

C.P.No.303/2000. After committal proceedings, the

same was committed to the Additional Sessions Judge

for trial of Abkari Act cases, Neyyattinkara where

the same was tried as S.C.No.1025/2001.

3. In support of the prosecution case, they

have examined PWs. 1 to 6, marked Exhibits P1 to P9

and MO1 was identified. After completing the

prosecution evidence, the accused was questioned

under Section 313 Cr.PC and the incriminating

materials brought out during the course of trial

were put to him. However, the appellant denied all

the said materials and pleaded innocence. No

defence evidence was adduced by the accused.

4. After evaluating the materials adduced by

the prosecution, the Sessions Court arrived at the

conclusion that, the prosecution was able to

establish the guilt of the accused. Accordingly,

the appellant was convicted and he was sentenced in

the manner as mentioned above. This appeal is filed

by the appellant challenging the aforesaid

conviction and sentence.

5. Heard Sri. Blaze K.Jose, the learned

counsel for the appellant and Sri. Ranjit George,

the learned Public Prosecutor appearing for the

respondent.

6. The learned counsel for the appellant

contends that, the prosecution failed to establish

the guilt of the appellant. It was pointed out

that, the prosecution miserably failed in proving

that, the liquid which was allegedly seized from

the possession of the appellant, was subjected to

chemical examination. By relying upon various

judgments, it was contended by the learned counsel

for the appellant that, in order to establish the

guilt of the accused, the prosecution is obliged to

establish every sequence of events right from the

seizure of the article to the chemical examination

conducted by the expert in this regard. It was

pointed out that, in this case, the sampling was

done by a ministerial officer of the court without

proper compliance of any legal requirements. In

such circumstances, it was pointed out that, no

legal sanctity can be attributed to the said

proceedings and it vitiates the entire prosecution

case. It was also highlighted by the learned

counsel that, Ext.P1 seizure mahazar does not

contain the impression of the seal affixed on the

can at the time of seizure of the same. This is

also another circumstance which vitiates the

prosecution case. On the basis of the same, it was

contended that, the appellant is entitled for

acquittal as the prosecution could not prove the

offence against him beyond reasonable doubt.

      7.     On      the        other        hand,         learned          Public

Prosecutor          seriously          opposes       the     same.       It      was

pointed       out     that,      the    evidence       of       PWs.    2     to   5

coupled with the contemporaneous documents such as

Exts. P1, P2, P3 and P4 would clearly establish the

guilt of the accused. In such circumstances, the

learned Public Prosecutor prays for the dismissal

of the appeal.

8. The crucial question arises is as to

whether the prosecution has established the guilt

of the accused or not. The main contention put

forward by the learned counsel for the appellant is

with regard to the authenticity of the sampling. In

this case, PW2 and PW3 were the officers who were

parties to the Excise Party which detected the

offence. PW1 is the Preventive officer and PW3 is

the Detecting officer. Their evidence would

indicate that, when they were conducting patrolling

duty, they found the accused with a can having a

capacity of 5 litres of arrack. Since his movements

were suspicious, he was intercepted and it resulted

in the seizure of the articles in question.

Immediately after the same, the appellant was

arrested and the article was seized. Upon seizure,

Ext.P1 seizure memo was prepared and the seals were

affixed on the can with the signature of the

appellant and attesting witnesses. The aforesaid

seizure mahazar was prepared by PW3. PW4 is the

Assistant Excise Inspector who registered the case

and the occurrence report, which is Ext.P5. After

preparing the necessary documents in this regard,

he produced the accused and the articles seized before

the court on the same day along with the necessary

documents in this regard.

9. PW5 is the Thondi Section clerk of the

jurisdictional Magistrate Court. It is evident from

the deposition of PW5 that, the thondi was verified

and received by her from the Excise Party.

Thereafter, she received the specimen impression of

the seal and she had compared that impression with

the impression found on the seal of the can. Thus,

after verifying the genuineness of the seal and the

tamper proof condition thereof she received the

same and registered the said article by making

necessary entry in page 77 of the Thondy Register

as T-198/98. The extract of the Thondy Register was

marked as Ext.P9. Later, on the basis of the oral

direction issued by the learned Magistrate, she had

broken the tamper proof seal on the can and

extracted 150 ml. of liquid in an empty bottle

which was closed tightly and was covered with a

cloth. The seal of the court was also affixed

thereon. The crime number as well as the thondi

number was also specified in the aforesaid sample

bottle. Later, after obtaining the counter

signature of the learned Magistrate thereon, the

same was forwarded to chemical analyst for

examination. Exhibit P7 is the chemical analysis

report. From the aforesaid document, it is evident

that, the sample contained ethyl alcohol and

accordingly it supports the prosecution case. These

are the materials which are relied upon by the

prosecution for establishing the guilt of the

accused.

10. On examining the aforesaid materials, it

can be seen that, there is some force in the

contentions put forward by the learned counsel for

the appellant. In the decision in Baburaj v. State

of Kerala [2021(6)KHC 92], this Court considered

the question as to the requirement of strict

compliance of the provisions of Abkari Act for the

purpose of holding a person guilty of the offences

under the said Act. After elaborately considering

large number of judgments of the Hon'ble Supreme

Court and this Court, it was observed by this Court

that, strict compliance of the provisions is

mandatory for establishing the guilt. In the said

judgment, the question as to the competence of the

ministerial staff of the jurisdictional court for

drawing samples from the articles seized was also

specifically dealt with. After discussing various

judgments rendered by this Court, it was

categorically held that, the Thondi Section clerk

is not competent to carryout sampling, even if the

same is done on the basis of instructions from the

learned Magistrate in this regard. In paragraph 35

of the said judgment, it was observed as follows:

"35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water - tight compartments provided for the investigator and the Court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the Investigating

Officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala (2019 KHC 3526 : 2019 (2) KLT 974), wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala (2020 KHC 221 : 2020 (2) KLT 590 : ILR 2020 (2) Ker. 164 : 2020 (2) KLJ

742), this Court had an occasion to consider whether the Magistrate has the power or authority to direct the Investigating Officer to draw the sample from the contraband produced before the Court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory."

Thus it is evident that, going by the principles

laid down by this Court in the aforesaid judgment,

the act of sampling is a matter comes within the

realm of powers of investigating officer. The

Magistrate has no power to give any instruction to

the ministerial officers of the court to do the

sampling and forwarding the same to the chemical

analysis report. When the materials available in

this case is considered in the light of the

principles laid down as above, it can be seen that,

the same are squarely applicable in this case.

Going by the evidence of PW5, it is evident that,

it was the clerk who handled the Thondy Section who

carried out the sampling in this case. It is also a

relevant aspect in this regard that, there are no

contemporaneous documents available indicating the

manner in which the sampling was done. It is not

clear as to whether, the breaking open of the

sealed can and taking samples therefrom were done

in the presence of any responsible officers. Lack

of such documents would seriously affect the

veracity of the samples. In such circumstances, it

cannot be safely concluded that, the sample which

was subjected for chemical analysis was drawn from

the liquid which was seized from the possession of

the appellant.

11. There is yet another aspect which affects

the prosecution case. As pointed out by the learned

counsel for the appellant, Ext.P1 seizure mahazar

does not contain the specimen impression of the

seal which was affixed on the can at the time of

its seizure. The necessity to have the impression

of the seal on seizure mahazar was considered by

this Court in various judgments including

Moothedath Sivadasan v. State of Kerala and Another

[2021(1)KLT 744]. As the principles laid down in

the said judgment, lack of specimen impression of

the seal on seizure mahazar is a crucial lacuna in

the prosecution case. In this case, there are

several aspects which throws suspicion on the

veracity of the sample which was subjected to

chemical analysis. Firstly, even though it is

asserted by PWs.2 and 4 that, immediately after the

seizure of the said article, the can was sealed in

the presence of the appellant and the witnesses,

there is no evidence substantiating the same. Going

by the evidence of PW5, the seal claimed to have

been affixed on MO1 can was broken by PW5 and there

is no evidence on record as to the manner in which

the same was broken apart from the evidence of PW5.

As mentioned above, no contemporaneous documents

required for substantiating the genuineness of the

said transaction was prepared. The evidence of PW5

does not indicate the presence of any competent or

responsible officers in this regard at the time

when the sample was taken. Thus, when all these

aspects are taken into consideration, the only

conclusion possible is that, the sampling done by

PW5 was neither with any authority nor the same can

be relied upon for the purpose of establishing that

the said sample was taken from the liquid seized

from the possession of appellant. It is a well

settled position of law that in order to hold the

accused guilty of the offences under Abkari Act,

the entire chain of circumstances leading from the

seizure of the article until the chemical analysis

report is obtained are to be clearly established

with unimpeachable evidence. All the stages of the

transactions are to be clearly explained with

substantiating materials thereof. In this case,

when we examine the materials available on record,

it can be seen that, the entire links in between

the seizure of the contraband article and obtaining

of chemical analysis report are not proved.

Sampling is one of the most crucial aspect to be

proved by the prosecution and due to the reasons

mentioned above, it is highly suspicious. This

would indicate that, the materials available on

record is not sufficient to conclude that, the

liquid which was taken possession from the

appellant was subjected to chemical analysis report

and consequently it cannot be held that, the liquid

which was allegedly seized from the possession of

the appellant is a contraband article which is

attracting the offences under the Abkari Act. In

such circumstances, in the light of the failure on

the prosecution to establish the same, I have no

hesitation to hold that the prosecution failed in

proving the guilt of the accused beyond reasonable

doubt. The finding of conviction entered into by

the Sessions Court is, therefore, unsustainable and

liable to be interfered with.

In the result, this appeal is allowed and the

conviction and sentence imposed upon the appellant

herein by the Additional Sessions Judge for the

trial of Abkari Act cases, Neyyattinkara in

S.C.No.1025/2001 is hereby set aside. The

appellant/accused found not guilty of the charges

and accordingly he is acquitted. The bail bond

executed by the appellant shall stand cancelled.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE

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