Murali, S/O.Mundan vs State Of Kerala
2022 Latest Caselaw 1441 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. 1373 OF 2007
[AGAINST THE JUDGMENT DATED 26.6.2007 IN SC 424/2006 OF ADDITIONAL
               SESSIONS COURT (ADHOC-II), ERNAKULAM
APPELLANT/ACCUSED:

          MURALI, S/O.MUNDAN
          PACHELIL VEEDU, MUDAVOOR KARA, VELLOORKUNNAM-5.

          BY ADV SRI.P.V.ELIAS



RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA, ERNAKULAM, REPRESENTING, ASST.EXCISE INSPECTOR,
          EXCISE RANGE, MUVATTUPUZHA.

          BY ADV RANJIT GEORGE, PUBLIC PROSECUTOR




     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2022,
THE COURT ON 2.2.2022 DELIVERED THE FOLLOWING:
 Crl.Appeal No.1373 of 2007              2

                                  JUDGMENT

The appellant is the accused in S.C.No. 424/2006

on the file of the Court of the Additional Sessions

Judge (Adhoc-II), Ernakulam. The aforesaid case

arises from Crime No.4/2005 of Muvattupuzha Excise

Range which is registered against the petitioner for

the offences punishable under Section 55(a) of the

Abkari Act.

2. The prosecution case against the appellant is

that on 6.8.2005, while the Excise party was checking

vehicles near Mudavoor Church at Muvattupuzha-

Pattimattom public road, the appellant was found

riding a Bajaj scooter bearing registration

No.KEE/5456. Even though, the Excise party asked him

to stop the vehicle, he did not do so and proceeded

with the vehicle. The Excise team chased him and when

the vehicle reached near Thavalakavala junction, the

appellant abandoned the scooter and escaped from the

place. When the scooter was examined, 5 bottles of

Indian Made Foreign Liquor containing 1 litre each

was found. Accordingly, the vehicle and the articles

were seized by preparing seizure mahazar in the

presence of independent witnesses.

      3.     On     the      basis   of    the   same,    the    Excise

Inspector,          Muvattupuzha      registered     Crime     No.4/2005

and investigation conducted. Upon completion of the

investigation, final report was submitted before the

Judicial First Class Magistrate Court, Muvattupuzha

where it was taken into file as C.P.No.4/2006. Upon

completing the statutory formalities, the aforesaid

case was committed to the Sessions Court and the same

was tried as S.C.No.424/2006.

4. In order to prove the prosecution case, they

have examined PWs.1 to 7, marked Exts. P1 to P10 and

identified material objects 1 and 2. After closing of

prosecution evidence, the appellant was examined

under Section 313 of the Cr.PC. During the course of

which, the incriminating materials brought out in the

trial were put to him. He denied the same and pleaded

innocence. No defence evidence was adduced on his

side. After examining the materials brought out by

the prosecution during the course of trial, the

Sessions Court found that, the appellant is not

guilty of the offence under Section 55(a) of the

Abkari Act. However, the Sessions Court found that

the acts committed by the appellant attracts the

offence under Section 63 of the Abkari Act and

accordingly he was sentenced to pay a fine of

Rs.5,000/- with a default sentence of simple

imprisonment for a period of three months. This

appeal is filed by the appellant challenging the

aforesaid conviction and sentence.

5. As there is no representation for the

appellant for the last so many postings, this Court

as per the order dated 12.11.2021 appointed Advocate

Aiswarya Ann Jacob as Amicus Curiae to assist the

Court. Heard the learned Amicus Curiae and

Sri. Ranjit George, the learned Public Prosecutor for

the State.

6. The only question that arises here is as to

whether the appellant is guilty of the offence under

Section 63 of the Abkari Act. The Sessions Court

found that, the appellant is guilty as the Court was

convinced on the basis of the materials available on

record that, the appellant was found in possession of

5 litres of Indian Made Foreign Liquor which is in

excess of the maximum quantity a person can possess

as per the relevant rules. Therefore, the basic

question that arises is as to whether the finding

entered into by the Sessions Court that the appellant

found in possession of 5 litres of Indian Made

Foreign Liquor is sustainable or not ? PW1 is the

Assistant Excise Inspector, Muvattupuzha Excise

Office who detected the offence in this case. He

deposed that, on 6.8.2005, while he along with the

subordinate officers were conducting vehicle

inspection near Mudavoor Church on Muvattupuzha-

Pattimattom road a scooter bearing registration

No.KEE/5456 which was being driven by the appellant

was found approaching the Excise party. When PW1

required the rider of the scooter to stop the

vehicle, he refused to do so and proceeded further by

speeding away from the spot. The Excise party chased

him, during the course of which, the rider of the

scooter abandoned the same and fled away from the

place. On verifying the scooter, they found 5 litres

of Indian Made Foreign Liquor having 1 litres each.

Immediately, the seizure mahazar was prepared, the

bottles were opened in the presence of witnesses,

sample of 200 ml. each were taken from the said

bottles and kept in sample bottles. The sample

bottles were duly sealed, labelled and separately

numbered. Thereafter, the thondi articles along with

the records and scooter were entrusted with the

Excise Inspector, Muvattupuzha who registered the

case.

7. PWs.2 and 3 are the independent witnesses who

attested Ext.P1 seizure mahazar. PW2 denied his

signature in Ext.P1 seizure mahazar whereas PW3, even

though admitted his signature in Ext.P1 seizure

mahazar, denied the seizure of the contraband article

from the scooter. Thus none of the aforesaid

witnesses supported the prosecution and accordingly

they were declared hostile.

8. PW4 is the Excise Inspector, Muvattupuzha who

registered the crime in this case. He gave evidence

in tune with the prosecution case and according to

him, immediately upon getting possession of the

articles, he produced the same before the court. PW5

is the Assistant Excise Inspector, Muvattupuzha who

arrested the accused and prepared Ext.P7 arrest memo

and immediately upon their arrest, Ext.P8 arrest

intimation was also sent to one of the friends of the

appellant. PW6 is the Village Officer, who prepared

Ext.P9 site plan. PW7 is the Excise Inspector who

investigated the case. As part of the investigation,

he recorded the statements of the witnesses and the

accused was identified by the said witnesses. Exhibit

P10 is the Chemical Analysis report of the sample,

which was marked through PW7. These are the evidences

adduced by the prosecution in support of their case.

9. In Exhibit P10 which is the certificate of

Chemical Analysis, it is specifically mentioned that,

the liquid made available before them through 5

sealed bottles marked as A1 to E1 were identified as

Indian Made Foreign Liquor. It is also stated that,

the seals on the packets were intact and found

tallied with the samples provided. Thus, it is

evident from Ext.P10 that sample seals were provided

along with the sample bottles which were found

tallied by the chemical Analyst. However, the crucial

question that arises is as to whether the prosecution

is successful to show that the sample seal provided

to the chemical Analyst is the very same seal which

is affixed on the sample bottles. While considering

the aforesaid question, the crucial aspect to be

noted in this case is that, in order to establish the

guilt of the appellant herein, the prosecution has an

obligation to show the connection with the sample

examined by the chemical analyst with the liquid

collected from the petitioner herein. In Vijay Pandey

v. State of Uttarpradesh [AIR 2019 SC 3569], the

Hon'ble Supreme Court was pleased to observe as

follows:

"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case not different from failure to produce the seized sample itself. In the circumstances, the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related".

When we apply the aforesaid principles in this case,

it can be seen that, the available materials are not

sufficient to connect the samples collected from the

scooter which was found in possession of the

appellant and the sample subjected to chemical

analysis. It is also a well settled position of law

that, in order to establish the connection between

the same, the prosecution has to adduce evidence

establishing each transactions took place in between

the seizure of the articles and until the same was

ultimately subjected to chemical analysis. In this

case, Ext.P1 is the seizure mahazar which is the

contemporaneous document prepared at the time of

seizing the contraband articles. On going through

Ext.P1, it can be seen that, even though the same

contained the recitals as to the seizure of the

articles and sampling thereof, it does not contain

the impression of sample seals affixed on the samples

collected at the time of seizure. Apart from the

above, Ext.P6 is the forwarding note by which the

samples were forwarded to the chemical examiner. It

also does not contain the impression of a sample

seal. It is to be noted that, in the format of

forwarding note, a specific space is provided for

forwarding the sample seal. Despite the same, the

sample seal is not provided.

10. In Moothedath Sivadasan and Another v. State

of Kerala [2021(1) KLT 744], this Court considered

the necessity to have specimen impression of seal on

seizure mahazar. After elaborately considering

various decisions on the point, it was categorically

concluded that, the lack of specimen signature in

seizure mahazar creates a shadow of doubt on the

prosecution case, as it reflects the failure on the

part of the prosecution in proving that the sample

which was produced before the court is the very same

sample which was collected from the appellant. In

this case, the learned Public Prosecutor pointed out

that, Ext.P2 thondi list contains the specimen of

sample seals and it was contended that, the same

amounts to compliance of the legal requirement.

However, as far as Ext.P2 thondi list is concerned,

it does not contain the signature of any independent

witnesses. Moreover, the aforesaid document also do

not contain the date on which the same was prepared.

Exhibit P1 seizure mahazar being a contemporaneous

document ought to have contained the specimen of the

sample seals. The absence of the same in Ext.P1 is

very crucial. Similarly, the absence of impression of

specimen seal on Ext.P6 forwarding note is another

lacuna in the prosecution case. In Unnikrishnan Nair

v. State of Kerala [2020(4)KLT 376], this Court

considered the said question and arrived at a

categorical finding that the absence of specimen

impression of seal on the forwarding note is a

crucial lacuna in the prosecution case. In this case,

the aforesaid legal requirements is lacking. In

Baburaj v. State of Kerala [2021(6)KHC 92], this

Court considered the question as to the necessity of

strict compliance of the statutory requirements for

holding an accused guilty of the offence punishable

under the provisions of Abakari Act. After

elaborately considering a large number of decisions

of the Hon'ble Supreme Court, it was held that, since

the provisions of Abkari Act is very stringent, the

doctrine of substantial compliance of the legal

requirements cannot be pressed into service and on

the other hand, strict compliance is to be insisted

upon. In such circumstances, the lack of impression

of specimen seal on Ext.P1 seizure mahazar and Ext.P6

forwarding note are very fatal to the prosecution

case. As mentioned above, the lack of the same, casts

serious shadow of doubt on the prosecution case and

in the light of the principles requiring strict

compliance of the legal requirements in the matter of

conviction of abkari offences, the only conclusion

possible is to hold that the appellant is not guilty

of the offence as alleged against him.

In the result, this appeal is allowed. The

conviction and sentence imposed upon the appellant as

per the judgment dated 26.6.2007 in S.C.No.424/2006

by the Additional Sessions Court (Adhoc-II),

Ernakulam is hereby set aside. The appellant is found

not guilty of the offence and he is acquitted of the

charges.

Sd/-

ZIYAD RAHMAN A.A.

JUDGE pkk