Kerala High Court
Raju vs State Of Kerala on 26 September, 2024
CRL.A NO. 1345 OF 2007
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2024:KER:72193
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
TH
THURSDAY, THE 26
DAY OF SEPTEMBER 2024 / 4TH ASWINA,
1946
CRL.A NO. 1345 OF 2007
SC NO.1426 OF 2001 OF ADDITIONAL SESSIONS COURT FOR TRIAL OF
ABKARI ACT CASES, NEYYATTINKARA
CP NO.215 OF 2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III,
NEYYATTINKARA
APPELLANT/2ND ACCUSED:
AJU, S/O.BENNYAN,
R
MEKKEPANDARATHARA PUTHEN VEEDU, PULLENTHERI,
KUNNATHUKAL DESOM, NEYYATTINKARA.
BY ADV SRI.G.SUDHEER
RESPONDENT/COMPLAINANT:
TATE OF KERALA,
S
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SMT.SEENA C.
THIS
CRIMINAL
APPEALHAVING
BEEN
FINALLY
HEARD
ON
26.09.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1345 OF 2007
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J U D G M E N T
This appeal isattheinstanceofthe2ndaccusedinSC
No.1426of2001,onthefileofAdditionalSessionsJudgefor
the Trial of Abkari Act Cases, Neyyattinkara, challenginghis
conviction and sentence under Section58oftheAbkariAct,
as per judgment dated 25.06.2006.
2. The appellant along with the 1st accused were
charged under Section 58 of the Abkari Act, as on
12.01.2000evening,theywerefoundinpossessionandsale
of arrack in the tapioca garden owned by the 1st accused.
PW4-SI of Police, Vellarada and party detected the offence
while doing patrol duty.
3. On appearance of accused Nos.1 and 2 before the
trial court, charge was framed against them under Section
58 of the Abkari Act, to which they pleaded not guilty and
claimedtobetried.PWs1to4wereexamined,Exts.P1toP9
weremarkedandMOs1and2wereidentified.Onclosureof
prosecution evidence, the accused were questioned under
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Section 313 of Cr.P.C. They denied all the incriminating
circumstances brought out in evidence, and DWs 1 and 2
were examined from their side as defence witnesses.
4. On analysing the facts and evidenceandonhearing
the rival contentions from either side, learned trial court
found that, prosecution failed to prove the guilt of A1
beyondreasonabledoubt,andsohewasacquitted;whereas
A2 wasfoundguiltyunderSection58oftheAbkariAct,and
he was convicted and sentenced to undergo rigorous
imprisonment for oneyearandfineofRs.1,00,000/-,witha
defaultsentenceofrigorousimprisonmentforthreemonths.
Aggrieved by the conviction and sentence, the 2nd accused
hascomeupwiththisappeal,statingthattheconvictionand
sentence are bad in the eye of law.
5. Heard learned counsel for theappellantandlearned
Public Prosecutor.
6. Learned counsel for theappellantwouldsubmitthat
thetestimonyoftheprosecutionwitnesseswasnotsufficient
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to find him guilty under Section 58 of the Abkari Act. The
independent witness,PW1turnedhostiletotheprosecution,
and though she admitted to have seen the Excise officials
taking MO1 can from a tapiocacultivation,accordingtoher,
the appellant was not seen at that place.
7.Thecaseoftheappellantisthat,sinceherefusedto
say the nameofsomepersonstoPolice,whowereengaged
insaleofarrack,hewasforciblytakenbyPolice,andfalsely
implicatedinthiscase.DWs1and2wereexaminedfromhis
side, to say that while the appellant was returning home,
afterhisdailywork,hewastakenbyPolice,asherefusedto
say the name of some persons engaged in sale of arrack
who ran away on seeing Police. That apart, let us see,
whether prosecution succeeded in proving the guilt of the
appellant under Section 58 of the Abkari Act.
8. PW4-the detecting officer deposed that while
engaged in patrol duty, himself and Police party received
informationregardingsaleofarrackinthetapiocaplantation
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of the 1st accused, and when they reached there, A2 was
found selling arrack, by pouring into a glass, and A1 was
collecting its sale proceeds. Two persons were there to
consume arrack. On seeing the Police party, except the
appellant/A2, all others fled away, and he was intercepted
along with thecancontainingabout4litresofarrack.Being
convinced by smell and taste that the liquid in the can was
arrack, the can was sealed and seized into custody. Ext.P1
mahazar was prepared at the place of occurrence itself and
the appellant/A2 was arrested then and there.
9. Ext.P1 mahazar will not show the specimen
impression of the seal used by PW4 to seal the can
containing arrack. In the mahazar, it is stated that the can
containing arrack was sealed and it was seized. If PW4 had
used his specimen impression of the seal while sealing the
can containing arrack, that seal might have been affixed in
Ext.P1 mahazar also, which is a contemporary document
prepared at the scene, and it will give authenticity to the
sample, that it was seized and sealed from the place of
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occurrence itself. In the absence of specimen seal in the
seizure mahazar, the genuineness of the seal found in the
sample bottle lose its authenticity. In Moothedath
Sivadasanv.StateofKerala[2021KHC3232],thisCourt
held that when there was no specimen impression of the
seal affixed on the seizure mahazar, it was difficult to hold
that the sample, which reached the Chemical Examiner's
Laboratory was the sample taken from the contraband
allegedly seized from the possession of the accused. In the
case on hand, strange enough, PW4 did not draw sample
from the arrack contained in the can.
10. PW3-the Thondy Clerk of Judicial First Class
Magistrate-III, Neyyattinkara, deposed before Court that as
per the oral direction of the Magistrate, she took sample
fromtheliquidcontainedinMO1can,on14.01.2000.Ext.P5
copy of the Thondy Register will show that Item Nos.1 and
2, i.e., the can containing 4 litres of arrack and the glass
were returned to the Police Station for safe custody on
13.01.2000itself.Ifso,noexplanationisofferedbyPW3,as
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to how could she drew the sample on 14.01.2000. Letter
addressedtotheChemicalExaminer'sLaboratoryshowsthat
the sample was forwarded to the Laboratory only on
22.02.2000. If the sample was drawn on 14.01.2000, the
reason for delay till 22.02.2000 is not explained by PW3.
11. In Ext.P3 forwarding note also, no specimen
impression of seal is seen affixed by PW4. Though it is
stated that the appellant was arrested by PW4atthescene
of crime, the arrest memo wasnotmarkedfromthesideof
prosecution.Learnedcounselfortheappellantwouldsubmit
that all these factors will pointtothefacttheappellantwas
notarrestedbyPW4withacanofarrack,andtheprocedural
formalities also were flouted by the officials.
12. Regarding drawing of sample by theThondyClerk,
learned counsel for the appellant would relyonthedecision
Baburaj v. StateofKerala[2021(6)KLT416=ILR2021
(4)Ker.934]tosaythat,theMagistratecouldnotundertake
the actoftakingsamplesthroughPropertyClerkasitisnot
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a procedure established bylaw.Paragraphs33to37ofthat
judgment is worth quoting as the facts in hand are almost
identical.
"3
3. Under the Abkari Act, there is no specific
provision which deals with the procedure for sampling
and sealing, etc. of the contraband. In practice and
guided by the provisions of the Excise manual, normally
sample is drawn at the spot by the detecting officer in
whichevent,theprocedurefollowedwouldberecordedin
a seizure mahazar being a contemporaneous document.
Thesample,alongwiththeresidueofthecontrabandand
other properties, is produced before the Court and the
sample is sent to the laboratory from the Court.
34.Itappearsfromthematerialsavailablethatthe
learned Magistrate, has orally authorised the property
clerk of the Court to draw the sample from the
contraband produced by the detecting officer. The act of
the learned Magistrate authorizing the property clerk of
the Court to draw the sample and send thesametothe
laboratory is undoubtedly an act in which he has
traversed the jurisdictional limits.
35. Drawing the sample and sealing the same are
acts within the exclusive provinceofthePoliceofficialor
the Excise official concerned. The learned Magistrate
undertaking the act of taking the sample from the
contraband himself is irreconcilable. The water - tight
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compartmentsprovidedfortheinvestigatorandtheCourt
in a criminal prosecution cannot,atanyrate,beallowed
to be traversed or interchanged. It is pertinent to note
thatthedetectingofficer,afterinvestigation,istofilethe
final report before the Magistrate. If the Magistrate
himselfundertakestheactoftakingthesamplefromthe
contraband produced before him, the question of
independent consideration of final report laid by the
InvestigatingOfficerbeforethelearnedMagistrate,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)
KLT974),whereinthisCourtheldthattheMagistratehas
no power or authority to collect samples from the
contraband produced before him. In Baby v. State of
Kerala(2020KHC221:2020(2)KLT590:ILR2020(2)
Ker.164:2020(2)KLJ742),thisCourthadanoccasion
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
fromthecontrabandproducedbeforehimforthepurpose
of sending it to the Chemical Examiner's laboratory.
36. The course adopted by the learned Magistrate
undertaking the act of taking samples through the
propertyclerkisnotaprocedureestablishedbylaw.The
necessary conclusion is that the Magistrate is not
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empowered to draw sample from the contraband
produced before him by the detecting officer.
37.Itisalsoverystrangetonotethattheproperty
clerk was taking samples based on the oraldirectionsof
the Magistrate. No document was contemporaneously
prepared to show the procedure followed in taking the
sample. Also, there is no material to show that the
sample was taken under the supervision or in the
presence of any responsible officers. Even the date on
whichthesamplewasdrawnisnotrecordedinanyofthe
relevant records. The genuineness of the sample
collected by the property clerk is under vehement
challenge."
13. There was no reason for PW4 for not drawing the
sample from the contraband, at the place of occurrence
itself. If the can containing arrack and the glass were
received back by the Police officials on 13.01.2000 as per
orders of the Magistrate for keeping it under safe custody
before the Police Station, the statement of PW3 that she
drew the sample before the court on 14.01.2000 could not
be believed. The delay in sending the sample to the
Chemical Laboratory after drawing sample on14.01.2000is
notsatisfactorilyexplainedbyPW3.PW3wasnotauthorised
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legally to draw the sample as per procedure established by
law. PW3 has no case that sampling was done in the
presence of learned Magistrate under his supervision. So in
any view ofthematter,thesamplingwasnotproperandso
much so, the identity of the sample which reached the
Chemical Examiner's Laboratory for analysis becomes
doubtful.
14. Learned trial court, without taking into account all
these vital aspects found the appellant guilty under Section
58 of the AbkariAct,andhencehisconvictionandsentence
are liable to be set aside.
In the result, the appeal is allowed acquitting the
accusedunderSection58oftheAbkariAct,andheissetat
liberty forthwith, and his bail bond also stands cancelled.
d/-
S
SOPHY THOMAS
JUDGE
DSV/-
