IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER TUESDAY, THE 7TH DECEMBER 2010 / 16TH AGRAHAYANA 1932 CRL.A.No. 1050 of 2002 -------------------------------- SC.290/2002 of ADDL. SESSIONS COURT (ADHOC), THRISSUR .................... APPELLANT/ACCUSED: CHACKO, S/O. VARGHESE, ORAVELIKUDI HOUSE, PARIYARAM VILLAGE, MUKUNDAPURAM TALUK. BY ADV. SRI.K.A. SRIJITH SMT.LIGEY ANTONY RESPONDENT/COMPLAINANT: STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.SMITHA SUKUMARAN SRI.SALIL NARAYANAN(AMICUS CURIE) SRI.P.VIJAYABHANU(AMICUS CURIE) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON CRL.M.P.NO.8259/2002 IN CRA 1050/2002 DISMISSED 7.12.2010 SD/- A.K.BASHEER, JUDGE /TRUE COPY/ A.K. Basheer, J. - - - - - - - - - - - - - - - - - - - - - - - - - Crl.A.No.1050 of 2002 - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of December, 2010 Judgment This appeal is preferred by the accused against the order of conviction and sentence passed against him under Section 55(a) and (i) of the Abkari Act. 2. Certain curious and baffling anomalies and irregularities in seizure and sampling of contraband liquor have been brought to light in this case. Such instances are disturbingly on the increase, which probably is for the reason that no codified procedural Guidelines/Rules have been brought into vogue. Yet another reason for the alarming increase of such anomalous situations could be that the detecting officers, be it from the Department of Excise or Police, do not bother to strictly adhere to the Rules or Regulations contained in the Abkari Act, Excise Manual or other relevant enactments and Regulations. It may even be that there are ambiguities or grey areas in the rules or guidelines that govern the field. It must also be noticed that the trial courts also have not shown sufficient diligence to Crl.A.1050/2002. 2 ensure that the contraband articles produced by the investigating agency before the court are properly kept. In such cases the prosecuting agency also is seen to have shown a lackadaisical attitude by refusing to adduce any evidence to show that the samples were at least kept in proper custody till such time they were transmitted to the laboratory concerned for chemical analysis. 3. Coming to the case on hand, the essential facts which led to the prosecution of the appellant may be briefly noticed. 4. The prosecution case is that on March 29, 1999 at about 5 p.m. appellant/accused was found in possession of three litres of illicit arrack being carried in a jerry Can of 5 litre capacity. He was allegedly standing on the south of Thumboormuzhi canal in Konnakuzhi desom of Pariyaram Village. On being questioned by the Sub Inspector of Police, Vettilappara Police Station who was leading the patrol party, the accused is stated to have admitted that the Can contained arrack and that it was for sale. The Sub Inspector tasted and smelt the contents of the jar and found that it was arrack. He arrested the accused and seized the jerry Can into custody. Three samples of 180 ml. each of the liquor were Crl.A.1050/2002. 3 taken in three bottles. The sample bottles were sealed. Ext.P1 seizure mahazar was prepared and case was registered against the accused. The sample was sent for analysis and the contraband articles were produced before the court. 5. Before the trial court the prosecution examined Pws.1 to 4. Exts.P1 to P6 and M.O.1 and 2 were also marked on its side. The learned Additional Sessions Judge after a detailed evaluation of the oral and documentary evidence on record found that the prosecution had succeeded in proving the charge against the petitioner under Section 55(a) and (i) of the Act. Accordingly he was convicted and sentenced to undergo Rigorous Imprisonment for one year each and to pay a fine of Rs.One lakh each and in default of payment to undergo Simple Imprisonment for 3 months each under Section 55(a) and (i) of the Act. 6. PW1, who is stated to have witnessed seizure and sampling of the contraband from the possession of the accused, turned hostile to the prosecution. However he admitted his signature in Ext.P1 seizure mahazar. Crl.A.1050/2002. 4 7. PW2, the Sub Inspector of Police who detected the crime, deposed before the court that he had found the accused carrying a jerry Can containing 3 litres of arrack and M.O.2 glass at about 5 p.m. on the alleged day of the incident. According to this witness, 3 samples of 180 ml. each were taken in three bottles and they were properly sealed. Ext.P1 seizure mahazar was prepared. M.O.1 Can and M.O.2 glass were seized. Ext.P1(a) First Information Report was registered after taking the contraband to the Police Station before which Ext.P3 scene mahazar was also prepared. In his chief examination PW2 stated that he had sent the samples for chemical analysis. But in cross examination, he admitted that he had not produced the sample bottles before the court. But Ext.P5 property list, which was prepared by PW2, will show that the three sample bottles apart from M.O.1 and M.O.2 were produced before the court on the next day viz., March 30, 1999. But in cross examination, this witness stated that he had produced three sample bottles before the court and 2 of them were sent for chemical analysis. He further deposed that one sample bottle might be available in the court. But none was produced or marked in the case . There is a Crl.A.1050/2002. 5 curious aspect to the above versions given by PW2 in the course of his examination before the court. Ext.P4 report of the chemical examiner reveals that three sample bottles had been received at the laboratory for chemical analysis. Interestingly three different values with regard to the content of ethyl alcohol in the three samples were noticed by the Chemical Examiner in the report which are extracted hereunder: Item No. Percentage by volume of ethyl alcohol 1. 36. 87 2. 36.63 3. 27.17 Thus it is clear that some authority, either the investigating agency or the court had forwarded the 3 samples to the Chemical Examiner. 8. Going by Ext.P5, property list it has to be assumed that the court had forwarded the sample bottles to the Chemical Examiner, since, as revealed from this document, the three samples were produced before the court on March 30, 1999 itself. As noticed already, PW2 asserted before the court that he had forwarded the samples to Chemical Examiner. Later, he Crl.A.1050/2002. 6 stated that two samples have been sent to the Chemical Examiner and one must have been available in the court. 9. In this context, it has been pointed out by the learned Public Prosecutor that normally a written requisition will be sent by the Investigating Officer to the court to forward thesample to the Chemical Examiner and a copy of the requisition will also be marked in the case as a document. But in this case such a document has not been produced, though it is pointed out by the learned Public Prosecutor, after referring to the case dairy available with him, that such a copy is in fact available in the CD file. 10. The short question is, if the samples had been forwarded by the court, which officer of the court was responsible for this irregular procedure of sending all the three sample bottles to the chemical examiner? Can it be believed that the officer concerned was not aware of the procedure to be followed? Is there any provision in any of the Rules or Regulations which permits sending of three samples for analysis and if so, which was the Rule or Regulation that was followed by the officer who forwarded the samples to the Chemical Crl.A.1050/2002. 7 Examiner? All these questions have remained unanswered. 11. It is further seen from the evidence on record that the samples had reached the laboratory only on May 26, 1999, after a delay of about three months. There is no explanation for the delay in forwarding the samples. Similarly, no evidence has been adduced to show that the samples had been kept in proper custody before they were forwarded to the chemical examiner. 12. PW2 had deposed before the court that he had put his signature on the labels on MOs1 and 2 and also on the sample bottles. He further stated that the accused had also signed on the label. But, PW2 conceded that his signature was not seen on the label. The signature of the accused was also conspicuously absent. All the above vital flaws in the prosecution case persuade me to give the benefit of doubt to the accused. 13. From the materials available on record, I am not prepared to accept the prosecution case, especially since there is no convincing evidence to show that the same samples which were allegedly taken from the contraband seized from the accused had been sent for chemical analysis. PW2 had no case that he had forwarded the specimen seal to the chemical Crl.A.1050/2002. 8 examiner. No other evidence has been adduced to show that specimen seal had been sent from the court, as is now contended by the learned Public Prosecutor. 14. Having regard to the above facts and circumstances, I have no hesitation to hold that the court below was not justified in convicting the accused for the offence under Section 55(a) and (i) of the Act. 15. Therefore, the order of conviction ad sentence passed against the accused/appellant is set aside and the appellant is acquitted. The bail bond executed by him is cancelled. Appeal is allowed. (A.K.BASHEER, JUDGE) an/jes Crl.A.1050/2002. 9 A.K.Basheer, J. ----------------------------------------- Crl.A.No.1050 of 2001 ------------------------------------------ JUDGMENT 7th December, 2010