IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE [ENTITY] FRIDAY, THE 15TH DAY OF JANUARY 2016/25TH POUSHA, 1937 CRL.A.No. 1587 of 2004 (C) AGAINST THE JUDGMENT IN [SECTION] of ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR APPELLANT/ACCUSED: [ENTITY], MATTATHUR VILLAGE. BY ADVS.SRI.P.VIJAYA BHANU [ENTITY] RESPONDENT/COMPLAINANT: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV. PUBLIC PROSECUTOR [ENTITY] THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-01- 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: [ENTITY], J [CASE NUMBER] Dated 15th January, 2016 JUDGMENT
Appellant was charge sheeted in [CASE NUMBER] before Additional Sessions Judge III, Adhoc Fast Track I, Thrissur for having committed an offence punishable under [SECTION] of the [ACT]. The charge against the appellant was that on 13.8.1999 at 7.30 am, he was found in possession of 4 = litres of coloured arrack in six bottles each containing 750 ml on the Vellikulangara-Kodakara road by the Preventive Officer, Irinjalakuda Excise Range. Appellant was arrested and a case was registered. After completing investigation, the Excise Inspector, Irinjalakuda Excise Range laid charge before Judicial First Class Magistrate, Chalakudy. From there, it was committed to Sessions Court, Thrissur.
2. During trial, prosecution examined three witnesses and marked Ext.P1 to P9 and admitted MO1 and MO2 as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He was also heard under [SECTION] [ACT] He did not adduce any defence evidence. Learned Additional Sessions Judge convicted him under [SECTION] of the [ACT] and sentenced to rigorous imprisonment for one year and fine of Rs.One lakh with a default sentence of three months. Being aggrieved by that, he preferred this appeal.
3. Learned counsel appearing for the appellant contended that in Ext.P7 chemical examination report, the colour of the article forwarded to the chemical examiners lab was mentioned as yellow which shows that the sample taken from the seized article was not examined in the laboratory. When there is difference in the colour of the sample in the chemical examiner's report, the accused is entitled to get the benefit of doubt.
4. The learned Public Prosecutor strongly opposed the above argument and contended that such questions were not challenged in the trial court. There is no meaning in the argument advanced by the appellant.
5. PW1 and 2 are the occurrence witnesses. Of them, PW2 is the Preventive Officer. His evidence shows that on 13.8.1999, while he was conducting patrol duty, the excise party arrived at Kodali junction. The appellant was found standing near Althara and tried to escape from there. He intercepted him and inspected the bag in which he detected six bottles of arrack each containing 750 ml. He seized them after preparing Ext.P1 mahazar. The accused was arrested as per Ext.P2 arrest memo. Reaching at the excise office, he registered a crime. MO1 series are the bottles seized from the appellant. MO2 is the carry bag. PW2 identified the appellant. In cross examination, he admitted that the colour of the article seized from the place of occurrence was brown and he never seized yellowish coloured article. PW1 was present there at the time of seizure of MO1 and MO2 who deposed that the colour of the seized article was brown. Now the colour of MO1 series is white. At the time of seizure 300 ml was taken as the sample from the seized article. A close analysis of the deposition of PW1 and 2, it is clear that at the time of seizure of Mo1 series, it's colour was brown.
6. The investigation was conducted by PW3, who was the Excise Inspector, Irinjalakuda Range. His evidence shows that PW2 produced the seized article before him, on the basis of that, he registered a crime and occurrence report. Ext.P4 is the report. The property list was marked as Ext.P5. The accused was produced before court as per Ext.P6 remand report. The sample taken was forwarded to the chemical examiner's lab through court. Ext.P7 is the chemical examination result. He arrived at the place of occurrence and prepared Ext.P8 scene mahazar and also obtained Ext.P9 rough sketch. A close scrutiny of the evidence of PW3 makes it clear that the facts indicated by PW1 and 2 about colour is correct. He has also no dispute with regard to the colour of the seized article. PW3 forwarded the sample to the chemical examiner's lab and obtained Ext.P7 report. The report in Ext.P7 shows that one sealed bottle containing 300 ml of clear and faint yellowish liquid involved in [CASE NUMBER] received for chemical analysis. The seal was in tact and tallied with the sample seal provided. The colour and appearance was reported as faint yellowish clear liquid. The smell was that of alcoholic. The test of ethyl alcohol shows 42.63% of ethyl alcohol in the sample. But prosecution has no case of change of colour of the seized article. Thus it is clear from the evidence of the occurrence witnesses that the colour of the seized article was brown. It is the primary responsibility of the prosecution to explain the reason for the colour change in the sample. In such a situation ethyl alcohol detected in the sample is also not sufficient for a conviction under [ACT]. The reason for the colour change in the sample has to be explained by the prosecution. In my opinion the court below violated the fundamental rules of appreciation of evidence while analysing the evidence in Ext.P7.
7. This court in Ravi V. State of Kerala (2011(3) KLT
353) held as follows.
"The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper proof condition. ([PRECEDENT] and [PRECEDENT]. No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See [PRECEDENT]). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant".
8. There is no satisfactory explanation from the part of the prosecution to show that the same sample was forwarded to the Chemical Examiner's lab and it was received in the chemical examiner's office without any tampering. Therefore the evidence in Ext.P7 report is not admissible for a conviction against the appellant. Therefore on the basis of available materials, I am of the view that this is a fit case to extend the benefit of doubt to the appellant.
In the result, this appeal is allowed. The conviction and sentence passed by the Additional Sessions Judge III, Adhoc Fast Track I, Thrissur under [SECTION] of the [ACT] is set aside and appellant is set at liberty.
[ENTITY], JUDGE lgk