K.S.Vijayan vs State Of Kerala
2022 Latest Caselaw 6758 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
         THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 TUESDAY, THE 14TH DAY OF JUNE 2022 / 24TH JYAISHTA, 1944
                     CRL.A NO. 1114 OF 2011
AGAINST THE JUDGMENT DATED 31.05.2011 IN S.C.No.173 OF 2007
 ON THE FILES OF THE ADDITIONAL SESSIONS JUDGE(ADHOC)-II,
                            KALPETTA
APPELLANT/ACCUSED:

         K.S.VIJAYAN
         S/O.SUKUMARAN, KOVALAYIL HOUSE, POOTHADI POST,
         SULTHAN BATHERY, WAYANAD DISTRICT.
         BY ADVS.
         SRI.S.M.PRASANTH
         DR.K.BALAKRISHNAN


RESPONDENT/COMPLAINANT:

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


         SMT MAYA M.N - PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
                                    2

Crl.A.1114 of 2011

                     P.G. AJITHKUMAR, J
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                    Crl.A.No.1114 of 2011
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           Dated this the 14th day of June, 2022

                           JUDGMENT

Challenge in this appeal, filed under Section 374 of the

Code of Criminal Procedure, 1973, is to the judgment of

conviction and the order of sentence dated 31.05.2011 by

the Additional Sessions Judge (ADHOC)-II, Kalpetta in

Sessions Case No.173 of 2007. The appellant was the

accused and he was convicted for offence punishable under

Section 8(1) and (2) of the Abkari Act, 1077 and sentenced

to undergo simple imprisonment for a term of two years and

to pay a fine of Rupees one lakh, in default of payment of

which to undergo simple imprisonment for a period of one

year.

2. The case of the prosecution was that at or about

1.00 p.m on 27.10.2006, the appellant was found in

possession of 3.2 liters of arrack contained in a jerrycan at

Kaniyambatta. While PW1, the Excise Inspector, Kalpetta

Crl.A.1114 of 2011

Excise Range along with PW2, his subordinate was on patrol

duty found the appellant possessed with the contraband

resulting his arrest and seizure of the articles from him.

3. After the arrest of the appellant and seizure of the

contraband from his possession, he was produced before the

jurisdictional Magistrate. After necessary investigation, a

report as contemplated in Section 50 of the Abkari Act was

submitted before the Chief Judicial Magistrate, Kalpetta. On

committal, the matter was made over, after taking

cognizance by the Sessions Court, Kalpetta, to the Additional

Sessions Judge(Adhoc)-II, Kalpetta. A charge under Section

8(1) and (2) of the Abkari Act was framed and the appellant

stood trial on that charge. Evidence in the case comprises

oral testimonies of PWs 1 and 2 and Exts.P1 to P8. MOs 1

and 2 were identified as well. When the appellant was

examined under Section 313(1)(b) of the Code, he has

denied all the incriminating circumstances found in evidence

against him. He raised a case of total denial. No defense

evidence was let in. The learned Sessions Judge, after

considering the said evidence, found that the accused had

Crl.A.1114 of 2011

committed the offence.

4. The learned counsel appearing for the appellant

would contend that the learned trial Judge did not consider

the glaring laches on the part of the prosecution while

making the seizure and preparing the representative

samples and also the delay occurred between the date of

offence and date of filing the final report in court, resulting

in a miscarriage of justice. The learned counsel further would

submit that it was PW1 who detected the offence and

undertook the entire investigation including filing of the

report and that resulted in total prejudice against the

appellant. The learned counsel seriously contended that the

trial court did not consider that aspect at all while

appreciating the evidence and the prejudice that has

occurred on account of the same.

5. The learned Public Prosecutor on the other hand

would contend that evidence of PW1 is sufficiently

corroborated by the evidence tendered by PW2 in the

material particulars and therefore there is no question of

prejudice to the appellant on account of having the detection

Crl.A.1114 of 2011

and investigation being conducted by PW1 himself. As

regards the lack of seal in the seizure mahazar, Ext.P3, the

learned Public Prosecutor would submit that the sample

alone was required to be sealed and as the sample was

received in the chemical examiner's laboratory intact as

could be seen from Ext.P7, chemical analysis report, the said

contention of the appellant cannot be held good.

6. The offence was detected on 27.10.2006. After

due investigation, the report as contemplated in Section 50

of the Abkari Act was submitted before the Chief Judicial

Magistrate, Kalpetta on 16.07.2007. There occurred a delay

of about nine months. It is the requirement of Section 50 of

the Act that every investigation under the Act shall be

completed without necessary delay. It certainly obligates the

investigating officer to complete the investigation and

submit the report as early as possible. But being a public

officer, the Abkari officer may often be burdened with a

heavy workload and the command of Section 50 of the

Abkari Act in the matter of expeditious investigation may not

be literally practical. The question of delay always has been

Crl.A.1114 of 2011

a matter of concern in criminal investigations. All the same,

it is the settled law that delay alone may not result in the

discarding of a criminal prosecution altogether. Of course, if

there is inordinate delay and the delay causes some kind of

prejudice against the accused, that may be fatal to the

prosecution. In this case, however, there is nothing on

record to show that on account of such delay alone, there

caused any prejudice to the appellant. During cross-

examination of PW1, nothing has been suggested to show

that there occurred any kind of prejudice on account of such

delay. In the said circumstances, I am unable to accept the

said contention of the learned counsel appearing for the

appellant.

7. It is PW1 who detected the offence, arrested the

accused, seized the contraband, prepared samples,

conducted investigation including recording the statements

of the witnesses and submitted various reports including one

under Section 50 of the Abkari Act. It is true that simply

because the officer who detected the offence himself has

conducted the investigation, it cannot be said that the

Crl.A.1114 of 2011

prosecution necessary has to fail. Here again, the question

depends on whether any prejudice has occasioned to the

appellant on account of the same officer conducting both

detection and the investigation.

8. PW1 undoubtedly is an empowered officer under

the Act. Going by the scheme of the Abkari Act,

investigation of a crime that arises in the territorial

jurisdiction of an officer in charge of an Excise office, is his

duty. Therefore there is a statutory compulsion for the

officer in charge that an excise officer to conduct

investigation in a case where he himself had detected the

offence. But fairness always requires to have the

investigation of a case conducted by a different officer.

9. Coming to the facts of this case, evidence on

record would not show that by conducting investigation by

PW1 himself, any right of the appellant has been adversely

affected except on one aspect that there is lack of sample

seal in the seizure mahazar which can create doubt

regarding proper custody and genuineness of the contraband

and the sample. This aspect relates to the next submission

Crl.A.1114 of 2011

of the learned counsel that failure to affix sample in Ext.P3

mahazar defies the reliability of the case of the prosecution.

10. In the above aspect the learned counsel for the

appellant placed reliance on an unreported decision of this

Court in Crl.Appeal No.195 of 2008 dated 04.03.2022. The

learned Single Judge relying on Moothedath Sivadasan

and Another v. State of Kerala [2021 KHC 3232] took

the view that failure to affix sample seal on the seizure

mahazar can in certain cases becomes fatal to the

prosecution case. It was held,

"6. The main contention put forward by the learned

counsel for the appellant is regarding the failure on the

part of the prosecution in establishing the link between

the contraband article allegedly seized from his

possession, with the sample which was subjected to

chemical analysis. It is discernible from Ext.P2 seizure

mahazar that immediately upon seizure, two samples

were taken from the articles seized, one from one of

the bottles having the capacity of 375ml and the other

from one among the bottles having the capacity of

180ml. It is also stated that after drawing the sample

as mentioned above in two separate bottles, both of

them were sealed and submitted before the court.

Crl.A.1114 of 2011

However, the crucial aspect to be noticed in this regard

is that Ext.P2 seizure mahazar, a crucial document by

which seizure was effected, does not contain the

impression of specimen seal claimed to have been

affixed on the sample nor it contain the description of

the said seal. In Moothedath Sivadasan and

Another v. State of Kerala [2021 KHC 3232], this

Court clearly observed that the absence of seal on

seizure mahazar or the description thereof in the same

is a crucial lacuna on the part of the prosecution.

7. In Vijay Pandey v. State of Uttarpradesh [AIR

2019 SC 3569], it was held that, merely because of

the reason that, the chemical analysis contains the

nature of the samples seized, the same by itself cannot

be a ground for conviction unless it is shown that, the

very same sample which was taken from the articles

seized from the possession of the accused was

subjected to chemical analysis. In order to establish the

same, the prosecution has to prove each and every link

right from the seizure of the contraband article till it

reaches at the hands of the Analyst. In this case,

Ext.P2 seizure mahazar does not contain the impression

of the seal or the description thereof, and hence it

cannot be concluded that, the aforesaid link has been

established by the prosecution. The absence of the

Crl.A.1114 of 2011

establishing the said link results in failure on the part of

the prosecution to prove the tamper proof condition of

the sample subjected the chemical anlysis. In such

circumstances, it is a lacuna in the prosecution case

and the appellant is entitled for the benefit of doubt. In

the above circumstances, I am of the view that, the

finding entered into by the Sessions Court as to the

guilt of the appellant is liable to be interfered with"

11. The learned Public Prosecutor would submit that

in the absence of any evidence to indicate any tampering

with either the contraband or the sample produced before

the court, the said principle cannot be applied. The principle

laid down in the said decision does not give room for

drawing such a distinction. The failure to affix the specimen

seal, which was affixed on the sample, in the seizure

mahasar leaves a doubt in the link between the sample

prepared at the spot and the sample examined in the

laboratory. Hence, I do not find any reason to deviate from

the said view. Needless to say, the benefit of any doubt in

the case of the prosecution has to be extended to the

accused.

12. In the circumstances, I am of the view that the

Crl.A.1114 of 2011

prosecution has failed to prove the charge against the

accused beyond a reasonable doubt. Therefore the

prosecution necessarily fails. Hence I find that the conviction

and sentence of the appellant as per the impugned judgment

are liable to be set aside. I do so. The appeal is allowed. The

accused is set at liberty.

If the appellant is in custody, he will be released

forthwith. If he has deposited any amount towards the fine,

the same will be refunded to him.

Sd/-

P.G. AJITHKUMAR JUDGE PV