IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH MARCH 2009 / 9TH CHAITHRA 1931 CRL.A.No. 701 of 2002() ----------------------- SC.126/1999 of ADDL.SESSIONS COURT (ADHOC-I), FAST TRACK, ALAPPUZHA .................... APPELLANT(S): ACCUSED --------------------- RAVEENDRAN, THUNDIL VEEDU, PATTOOR, LAKSHAMVEEDU COLONY, NOORANAD VILLAGE, MAVELIKKARA. BY ADV. SRI.A.SHAFEEK RESPONDENT(S): COMPLAINANT -------------------------- EXCISE INSPECTOR, MAVELIKKARA RANGE, MAVELIKKARA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY P.P. SRI C.M. KAMMAPPU. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.K.MOHANAN, J. ---------------------------------------------- CRL.A. No.701 of 2002 ---------------------------------------------- Dated 30th March, 2009. JUDGMENT This appeal is preferred by the sole accused in S.C.No.126 of 1999 in the court of the Additional Sessions Judge, Adhoc-I, Fast Track, Alappuzha, challenging his conviction and sentence under section 8 and 55(a) of the Abkari Act. 2. The prosecution case is that on 4.6.97 at about 6 p.m., while the Assistant Excise Inspector along with his party was on patrol duty and when they reached east of Gurudevan kavu temple near the Veerasaiva Sarpakavu at Edappon in Nooranadu village, they found the accused trying to run away on seeing the Excise party and hence, he was intercepted and on verification of the contents of the two bottles, which were carried on by the accused, on tasting and smelling, it was realised that the same was arrack and, accordingly, the contraband article was seized and the accused was arrested from the spot itself. On the Crl.A.No.701.2002. -:2:- basis of the above allegation, crime No.94/97 was registered in the Excise Range, Mavelikara and on completing the investigation, the final charge sheet was filed by the Excise Inspector, Mavelikara in the court of Judicial First Class Magisrtrate-I, Mavelikara wherein cognizance was taken and instituted C.P.No.40/98. Subsequently, as per the order in the committal proceedings, the case was committed to the Sessions Court, Alappuzha, from where the case was made over to the present trial court. 3. After hearing the accused as well as the prosecution, a formal charge was framed for the offences punishable under sections 8 and 55(a) of the Abkari Act and the same was read over and explained to the accused and he denied the same and pleaded not guilty and consequently, the prosecution adduced evidence consists of testimonies of PWs 1 to 6 and documentary evidence such as Exts.P1 to P6. The prosecution has also produced and identified M.Os 1 to 3 as material objects. The accused denied the incriminating circumstances when the same put to him Crl.A.No.701.2002. -:3:- under section 313 Cr.P.C. Finally, the trial court found that the prosecution proved the allegation against the accused as he was found transporting arrack and accordingly convicted him under section 8 of the Abkari Act. Consequently, after hearing the accused on sentence, he is sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.one lakh, and in default of payment of fine, the accused was ordered to undergo rigorous imprisonment for a further period of six months. Set off was allowed under section 428 Cr.P.C. It is the above finding, order of conviction and sentence challenged in this appeal. 4. I have heard Sri.A Shafeek, the learned counsel appearing for the appellant and also the learned Public Prosecutor. 5. The main evidence of the prosecution is that of the testimonies of PWs 1, 5 and 6 and other documentary evidence. PW1 is the Assistant Excise Inspector attached to the Mavelikkara Excise Range who detected the crime. PW5 is the Preventive Officer at that time attached to the Crl.A.No.701.2002. -:4:- Mavelikara Excise Range who accompanied PW1. PW6 is the Investigating Officer. Though PWs 2, 3 and 4 were cited and examined by the prosecution as independent witnesses to prove the incident such as seizure and arrest of the accused, they turned hostile. Ext.P1 is the mahazar prepared by PW1 connected with the seizure of the contraband article. Exts.P2 and P3 are Sec.161 statement of PWs 2 and 3. Ext.P4 is the occurrence report. Ext.P5 is the thondi list as per which the contraband articles were produced before the court. Ext.P6 is the Chemical Analysis Report. During the trial, two bottles each having the capacity of 750 ml. produced by the prosecution identified as material objects (M.O.1 and M.O-2). M.O.3 is the piece of paper alleged to have been wrapped Mos 1 and 2. When PW1 was examined, he had deposed in terms of the case of the prosecution. Ext.P1 was marked through him. Mos. 1 to 3 were also identified through PW1. PW5, the then Preventive Officer attached to the Mavelikara Excise Range, when examined has deposed in tune with the deposition of PW1, Crl.A.No.701.2002. -:5:- as he is an officer accompanied PW1 at the time of the alleged detection of the crime. PW6 is the investigating officer who had deposed that as per Ext.P4 occurrence report and Ext.P5 property list prepared by him, produced the thondi articles before the court below and he questioned the witnesses also. On the basis of the above evidence and materials, the trial court found that the accused is guilty of the offence under section 8 of the Abkari Act. 6. The learned counsel challenging the conviction and sentence, vehemently argued that the finding of the court below is absolutely illegal and arbitrary and also baseless. It is pointed out by the learned counsel that there is no independent evidence to corroborate the version of PWs 1, 5 and 6 who are official witnesses and highly interested in the prosecution case. 7. The learned counsel submitted that there is culpable delay in producing the contraband articles as well as the samples, which alleged to have been drawn by PW1 at the time of the so called seizure. It is pointed out that no Crl.A.No.701.2002. -:6:- convincing explanation was offered by PW1 for the delay occurred in producing the seized articles before the court below. It is also pointed out that though PW1 has claimed that the samples were drawn from the alleged contraband articles, the samples reached in the court below only on 22.12.97. So, the learned counsel, on the basis of the said anomaly, pointed out that the prosecution has miserably failed to give proper explanation and adduce any evidence regarding the proper custody of the contraband articles which alleged to have been seized from the possession of the accused. It is also pointed out that though in Ext.P6 chemical analysis report it is stated that the samples reached in the laboratory on 31.12.97, there is no evidence or materials as on which date the samples were sent from the court. If the date shown in the reference letter No.T.R.357/97, i.e. 27.12.97, is taken as the date of despatch of the sample from the court, there is four days delay in reaching the samples in the laboratory. There is also no explanation for such delay. It is also pointed out by Crl.A.No.701.2002. -:7:- the learned counsel that there is no proper sealing and labeling of the contraband articles and the material objects alleged to have been seized by the prosecution. So, on the strength of the decision reported in Damodaran v. Station House Officer (2008 (1) KLT SN 15 (C.No.18), the learned counsel submitted that the prosecution has miserably failed to establish the guilt of the accused, therefore the impugned judgment is liable to be set aside and the appellant is entitled to get acquittal. 8. On the other hand, the learned Public Prosecutor submitted that the evidence of PWs 1 and 5 and 6 are believable and easily acceptable, as no ground is made out to reject their evidence. The learned Public Prosecutor pointed out that the prosecution has already cited and examined PWs 2, 3 and 4 who are the independent witnesses to substantiate the prosecution case. But they turned hostile. Therefore, according to the learned Public Prosecutor, it is not a case where the prosecution had not tried to produce independent witnesses, but their attempt Crl.A.No.701.2002. -:8:- was defeated by the defence as they somehow managed to get the assistance of these witnesses. It is also pointed out that the evidence of PWs 1, 5 and 6 are in no way defective or doubtful. It is also the case of the learned Public Prosecutor that though there was some delay in reaching the contraband articles in the court below, such delay itself is not a ground to acquit the accused. The learned Public Prosecutor further submitted that, regarding the seizure, there was ample evidence of PWs 1 and 5 that the contraband article was in the custody of PW1 which was safely produced before the court and under that circumstances, even if the material objects do not contain label or seal, it will not affect the prosecution case as such. According to the learned Public Prosecutor, the trial court has already considered all those aspects and came into a correct conclusion and no interference of this Court is warranted. 9. I have carefully considered the arguments advanced by both the counsel for the appellant as well as the learned Crl.A.No.701.2002. -:9:- Public Prosecutor and also perused the records. 10. The crux of the prosecution case is that the accused was found in possession and being transported 1.5 litres of arrack in two bottles, each containing 750 ml., along with the Panchayat road which leads to the place called Ambidavu Puncha at about 6 p.m on 4.6.97. According to PW1, he detected the crime while he was conducting patrol duty along with PW5. It is true that when PW1 and PW5 were examined, they deposed in terms of the prosecution case. In this case, PWs 2 to 4 who are independent witnesses, when examined, turned hostile towards the prosecution and therefore, absolutely there was no independent evidence to substantiate the prosecution case or to support the evidence rendered by PWs 1 and 5, especially, regarding the seizure. Of course, it is not a rule that the evidence of official witnesses can be accepted and acted upon only when the same is corroborated by independent source of evidence. But in the present case, when the independent witnesses were turned hostile, it is Crl.A.No.701.2002. -:10:- incumbent on the investigating agency to convince the court regarding the correctness of the allegation and, that too, supported by strict evidence. If the entire case is examined in the above background, the first point raised by the learned counsel for the appellant assumes vital importance. According to the prosecution, PW1 seized the contraband article on 4.6.97 at about 6 p.m. Admittedly, the contraband article and the samples were reached in the court only on 22.12.97. Absolutely, there is no explanation for the culpable delay that occurred in producing the contraband article and the samples before the court below. In the decision reported in Damodaran v. Station House Officer (2008(1) KLT SN.15 (C.No.18), this Court has held that absence of evidence to prove that residue and sample were kept in proper custody, tampering of evidence cannot be ruled out. In the very same decision, it is also held that it is the duty of the Excise Officer or Police Officer to deal with article seized, keeping of the same and production of the same before court in time. Another learned Judge of this Crl.A.No.701.2002. -:11:- Court in the decision in Sasidharan v. State of Kerala (2007(1) KLT 720) has held that without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. In the very same decision this court has held that “there is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused”. Based upon the decisions reported in The State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550) (SC), this Court in Sasidharan's case (cited supra) , has held that “when the sample changed hands before reaching the Chemical Examiner the prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not Crl.A.No.701.2002. -:12:- been tampered with”. On examination of the case in hand in the light of the dictum laid down by this Court through the decisions cited supra, it can be seen that there is also a delay of 6 months in reaching the contraband article and the samples before the court below. There is no convincing evidence as to who was the custodian of the contraband article as well as the residue. Ext.P1 mahazar would show that there was no proper sealing and labelling of the samples as well as the contraband article and the material objects. So, the possibility of tempering with the samples and the contraband article, cannot be ruled out. If that be so, the appellant is certainly entitled to get the benefit of doubt. 11. It is also relevant to note that as per Ext.P6 chemical analysis report, the samples reached in the laboratory on 31.12.97. There is no evidence or materials to show on which date actually the samples were taken from the seized article, which were produced before the court on 22.12.97. In Ext.P6 it is stated that in the laboratory, they received the samples as per letter No.T.R.357/97 dated 27.12.97. That does not mean that Crl.A.No.701.2002. -:13:- samples were handed over only on 27.12.97 and even if the said date taken as true, till then there is the delay of 4 days in reaching the contraband article in the laboratory. The official who received the samples from the court was not examined by the prosecution, no explanation was furnished by the prosecution as to why that delay occurred and also by non examination of such official, the accused was denied opportunity to question and ascertain the reason for the delay and thus it created great prejudice to the accused. Though this points were raised and brought to the notice of the court below as per observation contained in para 20 and 21, the trial court has miserably failed to consider the above vital aspect of the case which would have been in favour of the accused. Thus the prosecution has failed to prove its case beyond doubt against the appellant. In the light of the above facts discussed and the materials referred, I am of the view that the finding of the trial court regarding the guilt of the appellant/accused and order of conviction and sentence are not sustainable and the impugned judgment is liable to be set aside and I do so. Crl.A.No.701.2002. -:14:- In the result, this appeal is allowed setting aside the judgment dated 1.8.2007 in S.C.126/99 of the court of Addl.Sessons Judge, Adhoc-1, Fast Track, Alappuzha and the appellant/accused is acquitted of all the charges levelled against him and the bail bond, if any, executed by him stand cancelled.. The appeal is allowed. V.K.MOHANAN, JUDGE kvm/- Crl.A.No.701.2002. -:15:- V.K.MOHANAN, J. CRL.A.NO.701/2002 JUDGMENT Dated: 30.3.2009