Kerala High Court
K.Ashokan vs State Of Kerala on 30 September, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE G.GIRISH
MONDAY, THE 30TH DAY OF SEPTEMBER 2024 / 8TH ASWINA, 1946
CRL.REV.PET NO.935 OF 2014
AGAINST THE JUDGMENT DATED 11.04.2014 IN CRA NO.165 OF 2013 OF
ADDITIONAL DISTRICT & SESSIONS COURT - II, KASARGOD ARISING OUT OF THE
JUDGMENT DATED 17.10.2013 IN SC NO.169 OF 2008 OF ASSISTANT SESSIONS
COURT, HOSDRUG
REVISION PETITIONER/APPELLANT/ACCUSED:
K.ASHOKAN
AGED 44 YEARS
S/O.KUNHAMAN, RESIDING AT MUNDATHODE,
KALLURAVI,KANHANGAD VILLAGE, HOSDURG TALUK,
KASARAGOD DISTRICT.
BY ADV SRI.T.MADHU
RESPONDENT/RESPONDENT & STATE:
STATE OF KERALA
THROUGH THE EXCISE INSPECTOR,
HOSDURG EXCISE RANGE,KASARAGOD DISTRICT,
REPRESENTED BY THE PUBLICPROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM 682 031.
SMT.MAYA.N.M, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
30.08.2024, THE COURT ON 30.09.2024 DELIVERED THE FOLLOWING:
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Crl.R.P.No.935/2014 2
G.GIRISH, J.
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Crl.R.P.No.935 of 2014
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Dated this the 30th day of September, 2024
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ORDER
This revision is directed against the judgment dated
11.04.2014 of the Additional District & Sessions Court-II,
Kasaragod in Crl.Appeal No.165/2013, confirming the conviction
and sentence of the petitioner for the commission of offence under
Section 8(1) and (2) of the Abkari Act.
2. The prosecution case is that the accused, on
18.08.2006 at about 11.45 a.m., was found to have been in
possession of three litres of arrack in a plastic jerrycan of five litre
capacity while coming through a public road. The Excise Inspector
of Excise Circle Office, Hosdurg and his team are said to have
arrested the accused on the spot and recovered the contraband
item from him. The Detecting Officer claims to have collected one
sample of the arrack contained in the jerrycan, in a bottle of 375ml
capacity. It is also stated that the Excise Inspector complied with
the necessary formalities of seizure and prepared a mahazar
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pertaining to the same. The accused as well as the seized
contraband item, along with the case records are said to have
been handed over to the Excise Inspector of Hosdurg Excise
Range Office, who registered a crime and occurrence report on
the same day. The accused was produced before the Magistrate
and remanded to judicial custody. The sample bottle containing
arrack is said to have been forwarded to the Chemical Examiner's
Laboratory through the Judicial First Class Magistrate Court
concerned. The jerrycan containing remaining arrack is said to
have been forwarded to the Assistant Excise Commissioner for
proceedings under Section 53A of the Abkari Act. After the
completion of the investigation, the Excise Inspector of Hosdurg
Excise Range Office laid the charge sheet before the Magistrate
concerned.
3. Upon commitment and makeover of the case to the
Assistant Sessions Court, Kasaragod, the learned Assistant
Sessions Judge, after considering the prosecution records and
hearing both sides, framed charge against the accused under
Section 8(1) and 8(2) of the Abkari Act as well as under Section
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55(a) of the Abkari Act, in the alternative. As the accused pleaded
not guilty to the charge, the learned Assistant Sessions Judge
proceeded with the trial, in which six witnesses were examined
from the part of the prosecution as PW1 to PW6 and 12 documents
were marked as Exts.P1 to P12. After the close of the prosecution
evidence, the accused was questioned under Section 313(1)(b) of
the Code of Criminal Procedure. The accused took up a plea of
total denial. Finding that there is no grounds for an acquittal
under Section 232 Cr.P.C., the learned Assistant Sessions Judge
provided opportunity to the accused to adduce defence evidence.
One witness was examined from the part of the accused as DW1.
However, no documents were exhibited as defence documents.
After evaluating the above evidence, and hearing both sides, the
learned Assistant Sessions Judge found the accused guilty of
Section 8(1) read with Section 8(2) of the Abkari Act and
convicted him thereunder. He was sentenced to undergo simple
imprisonment for two years and a fine of Rs.1,00,000/- with a
default clause of simple imprisonment for six months. Though the
verdict of the learned Assistant Sessions Judge was taken up in
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appeal before the Sessions Court, Kasaragod, the learned
Additional Sessions Judge-II, Kasaragod, who heard the appeal,
declined to interfere with the conviction and sentence, and
confirmed the verdict of the trial court. Aggrieved by the aforesaid
dismissal of the criminal appeal, the petitioner is here before this
Court with this revision petition.
4. Heard the learned counsel for the revision petitioner
and the learned Public Prosecutor representing the State of
Kerala.
5. For establishing the charge framed against the accused,
the prosecution had to necessarily establish that the accused was
arrested with contraband arrack held by him in the jerrycan which
is said to have been seized by the Detecting Officer on
18.08.2006. It is for showing that the item contained in the
jerrycan held by the accused was arrack, that sample was
collected from the aforesaid liquid and sent for chemical analysis.
It is true that the Chemical Examiner's report, which is marked in
evidence before the Trial Court as Ext.P12, contains the indication
that the sample of liquid which was sent for chemical analysis
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contained 16.43% by volume of Ethyl Alcohol. Of course, the
above Ethyl Alcohol content found in the liquid allegedly held by
the accused in the jerrycan, is indicative of the fact that the
aforesaid jerrycan in fact contained arrack. However, for a court
of law, for acting upon the Chemical Examiner's report like the
one which is marked as Ext.P12, has to ensure the following
aspects:
(i) It has to be ensured that samples were collected from
the jerrycan held by the accused in a foolproof and fair manner.
(ii) The sample so collected from the liquid contained in the
jerrycan held by the accused, was forwarded to the Magistrate
concerned in such a manner that there was absolutely no chance
for any tampering, and that the sample collected by the Detecting
Officer reached the Magistrate's Court in the same condition as it
existed at the time when it was so collected.
(iii) The samples so received by the Magistrate's Court
concerned, was forwarded to the Chemical Examiner's Laboratory
in a tamper proof condition and that the said sample reached the
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Chemical Examiner's Laboratory in the same state and condition
as it was at the time of despatch from the Magistrate's Court.
6. The collection of the sample by the Detecting Officer in
a foolproof and fair manner has to be ascertained by verifying the
seizure mahazar in which he has mentioned the procedures
adopted by him in connection with the collection of samples. As
far as the present case is concerned, in Ext.P1 mahazar, the
Detecting Officer has stated that he had collected 300ml of arrack
as sample in a bottle of 375ml capacity and the said bottle had
been sealed and labelled. The seal said to have been affixed in
the sample bottle is stated to be the personal seal of the Detecting
Officer. It is further stated that in the label which was affixed in
the sample bottle, the Detecting Officer, the accused as well as
the witnesses had affixed their signatures and mentioned the date
as well as time when it was so done. However, it is seen that
Ext.P1 mahazar does not contain the description of the personal
seal said to have been affixed by the Detecting Officer in the
sample bottle. Nor had the Detecting Officer affixed the specimen
seal impression in Ext.P1 mahazar. Instead, it is seen that the
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specimen seal impression had been taken in a separate sheet of
paper signed by the Detecting Officer. The aforesaid separate
sheet of paper containing the specimen seal impression is marked
as Ext.P2 before the Trial Court. It is pertinent to note that Ext.P1
Mahazar does not contain any indication that the Detecting Officer
had taken the specimen seal impression separately in a sheet of
paper. There is absolutely no statement in Ext.P1 mahazar that
the sample was collected in a clean and moisture-free bottle. Nor
had the Detecting Officer stated in Ext.P1 that the sealing was
done in wax applied over the knot of the twine fastened across
the cloth covering the bottle. It is also not possible to understand
from Ext.P1 mahazar as to which portion of the sample bottle was
affixed with seal by the Detecting Officer. Thus, it has to be stated
that the evidence adduced by the prosecution is not sufficient to
establish that the sample was collected in a foolproof and fair
manner.
7. The second aspect to be looked into is whether the
sample collected by the Detecting Officer reached the Magistrate
Court in a tamper proof condition in the same state as it existed
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at the time when it was collected. It is true that the Ext.P5
property list produced by the prosecution contains the indication
that the material objects produced before the Magistrate's Court
concerned were sealed and labelled. However, there is absolutely
no indication in Ext.P5 property list that the above said seal and
label were verified and found to be intact by any officer of the
court at the time when those items were received at the court.
Instead, there is only a seal affixed in Ext.P5 from the Court of
Judicial First Class Magistrate-I, Hosdurg, which contains the
endorsement that the said items were received and entered as
P.R No.288/2006 on 18.08.2006. There is absolutely no evidence
adduced by the prosecution to show that the sample bottle was
verified by the officers concerned of the Magistrate Court, and that
it was received after ensuring that the seal affixed by the
Detecting Officer at the time of collection of the said sample was
intact. It is also not possible to say that there was any occasion
for the staff of the Magistrate's Court to verify the label affixed in
the sample bottle at the time when it was received at the court.
Thus, the second requirement towards ensuring that the sample
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bottle reached the Magistrate Court in a tamper proof condition in
the same state as it was at the time of collection by the Detecting
Officer, is also not fulfilled in the case on hand.
8. Now, the third aspect to be looked into is whether the
sample bottle reached the Chemical Examiner's Laboratory in
tamper proof condition from the Judicial First Class Magistrate's
Court concerned. The requirement in this regard could be said to
have been fulfilled, if the authorities concerned at the Chemical
Examiner's Laboratory are convinced of the fact that the sample
bottle which reached the Chemical Examiner's Laboratory was
bearing the same seal impression as seen affixed in the forwarding
note, and that there was absolutely no tampering with the same.
It is true that Ext.P12 Chemical Examiner's report contains the
endorsement that the seal on the sample bottle was intact and
found tallied with the sample seal provided. However, a perusal
of Ext.P6 forwarding note would reveal that there are two different
seal impressions affixed at the space provided for affixing sample
seals. Among the above two different seal impressions, one seal
impression appeared to be the same seal impression seen in
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Ext.P2 sheet of paper. The other seal impression appeared to be
that of the Judicial First Class Magistrate Court, Hosdurg, from
where the sample bottle was despatched to the Chemical
Examiner's Laboratory. However, it has to be stated that by
affixing two different seal impressions in the space provided for
affixing sample seal in Ext.P6 forwarding note, the prosecution
had kept everyone in the darkness as to what exactly was the seal
affixed in the sample bottle which was sent to the Chemical
Examiner's Laboratory. There is absolutely nothing on record to
show that the sample bottle sent to the Chemical Examiner's
Laboratory was having an outer wrapping containing the seal of
the court of Judicial First Class Magistrate, and an inner seal which
had been affixed by the Detecting Officer. It is not possible to
decipher from Ext.P12 Chemical Examiner's Report as to which
seal was found to be intact and tallied at the time when the sample
bottle was received at the said laboratory. Thus, it has to be
stated that the prosecution has failed to establish that the third
requirement stated above for ensuring that the sample bottle was
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sent to the Chemical Examiner's Laboratory in a foolproof manner
without any chances of tampering, has been fulfilled.
9. There cannot be a successful prosecution in cases like
this without establishing that the same sample collected by the
Detecting Officer at the time of detection of the crime, reached
without any chances of tampering to the court concerned, and
that it was also forwarded to the Chemical Examiner's Laboratory
in a tamper proof condition without any chances of manipulations.
The proposition of law in this regard has been laid down in the
dictum of this Court in Sasidharan v. State of Kerala [2007
(1) KLT 720]. So also, in Rajamma v. State of Kerala [2014
KHC 2548], it has been held that the prosecution has to prove
that the specimen impression of the seal stated to have been
affixed on the bottle containing the sample, was provided to
Chemical Examiner for verification and to ensure that the
specimen seal, so provided, was tallying with the seal affixed on
the sample and in the absence of such link evidence, no sanctity
can be attached to the Chemical Examiner's report. Therefore, it
has to be held that the Trial Court as well as the Appellate Court,
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by ignoring the above cardinal aspects regarding the acceptability
of the evidence pertaining to the collection of sample and analysis
of the contraband item, arrived at a wrong finding that the
accused committed the offences charged against him.
10. There are also three other reasons which strike on the
root of the sustainability of the prosecution case. Firstly, it has to
be stated that the prosecution failed to bring in evidence to show
that the jerrycan containing the remaining arrack was dealt with
in accordance with the procedures established by law. As already
stated above, the case of the prosecution is that the aforesaid
jerrycan containing remaining arrack was forwarded to the
Assistant Excise Commissioner for initiating procedures under
Section 53A of the Abkari Act. Ext.P7 is said to be the inventory
prepared by the Assistant Excise Commissioner in respect of the
aforesaid jerrycan containing the remaining arrack which was
forwarded to the said authority. A perusal of Ext.P7 would reveal
that the said document is undated even though it bears the seal
and signature of the Assistant Excise Commissioner and the Excise
Inspector. Thus, it is not possible to say when the aforesaid
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inventory was prepared by the Assistant Excise Commissioner.
Ext.P8 is the certificate said to have been issued by the Judicial
First Class Magistrate concerned, after verifying the correctness
of Ext.P7 inventory. Apart from a casual statement in Ext.P8 that
the seal was found intact, there is absolutely nothing in that
certificate to discern that the Magistrate had compared the seal
impression in the jerrycan with any specimen seal impression, and
arrived at the finding that the said seal found in the jerrycan
tallied with it. It is also pertinent to note that Ext.P8 certificate
does not contain anything about the label said to have been
affixed by the Detecting Officer in the jerrycan seized from the
accused. Furthermore, a perusal of Ext.P9 photograph of the
jerrycan which is said to have been taken in the presence of the
Magistrate, would reveal that the label affixed in the aforesaid
jerrycan contained the crime number of the case which was
assigned at the Excise Range Office, Hosdurg, hours after the
detection of the crime. The description of the crime number in
the label affixed to the jerrycan can only show that the aforesaid
label was prepared and affixed at the Excise Range Office,
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Hosdurg, hours after the detection of the crime. The above aspect
would strike on the veracity of the contention of the Detecting
Officer that the label was affixed to the jerrycan seized from the
accused at the time of detection of the offence.
11. Another aspect which throws doubt about the bonafides
of the prosecution case is that the scene mahazar in this case was
prepared only on 23.12.2007, i.e., after the elapse of one year
and four months from the date of detection of the crime. There is
absolutely no explanation offered by the prosecution for the
inordinate delay in the preparation of scene mahazar which is an
essential requirement for a successful prosecution in a case like
this. That apart, it is to be noted that there is a delay of one year
and five months in the filing of the final report in this case after
the detection of the offence. There is no explanation offered by
the prosecution for the inordinate delay in this aspect as well. It
has been held by this Court in Krishnan.H v. State of Kerala
[2015 (1) KHC 822], and Chandran v. State [2016 (5) KHC
650], that unexplained delay in completing the investigation and
filing final report is fatal to the prosecution.
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12. Having regard to the above serious anomalies and
irregularities in the investigation which would render prejudice to
the accused, I am of the view that the Trial Court as well as the
Appellate Court went wrong in convicting and sentencing the
accused for the commission of offence under Section 8(1) and
8(2) of the Abkari Act.
In the result, I allow this Revision Petition. The judgment
dated 11.04.2014 of the Additional Sessions Court-II, Kasaragod
in Crl.Appeal No.165/2013 is hereby set aside. The
petitioner/accused is acquitted of the offence under Section 8(1)
and 8(2) of the Abkari Act, found against him by the Trial Court
as well as the Appellate Court.
Sd/-
G.GIRISH, JUDGE
vgd
