IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.S.SATHEESACHANDRAN FRIDAY, THE 27TH MARCH 2009 / 6TH CHAITHRA 1931 CRL.A.No. 335 of 2002() -------------------------------------- S.C.NO.188/2001 OF III ADDL.SESSIONS COURT (ADHOC)FAST TRACK COURT NO.I, THRISSUR. .................. APPELLANT/SOLE ACCUSED: ---------------------------------------------- PRABHAKARAN, S/O. THATTTANTHARA THAMI, KANIPPAYYUR VILLAGE, DESOM, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV. MRP.VIJAYA BHANU RESPONDENT/COMPLAINANT: ------------------------------------------------ STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT. PUSHPALATHA THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20/03/2009, THE COURT ON 27/03/2009 DELIVERED THE FOLLOWING: Kss ORDER ON CRL.M.P.NO.3234/2002 IN CRA.NO.335/2002 DISMISSED 27/03/2009 SD/- S.S.SATHEESACHANDRAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss S.S.SATHEESACHANDRAN, J. ------------------------------- CRL.APPEAL.NO.335 OF 2002 (A) ----------------------------------- Dated this the 27th day of March, 2009 J U D G M E N T Accused is the appellant. He faced trial for the offences punishable under Section 55 (i) and 58 of the Kerala Abkari Act, hereinafter referred to as the 'Act'. Negativing his plea of not guilty, the learned Additional Sessions Judge found him guilty of the offences, and, thereupon, he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-, and in default, rigorous imprisonment for six months more. Aggrieved by the conviction and sentence, he has preferred this appeal. 2. The gist of the prosecution case is that, on 28.4.1999, at 11.30 a.m., an Excise party headed by PW1, Preventive Officer of Kunnamkulam Range, while conducting raid over the property of one Radha, wife of Thankamon (PW3), situated in Kannippayyur Village of Thalappilly Taluk, found the CRL.A.335/2002 2 accused with unauthorized possession of a plastic container containing 10 litres of illicit arrack. Contraband was seized to custody, and sample collected and sealed at the spot, preparing Ext.P1 scene mahazar. The accused arrested was later released on bail. After completion of the investigation, PW5, Excise Inspector, Kunnamkulam Range, laid the charge against the accused, indicting him of the offences punishable under Section 55 (i) and 58 of the Act. 3. The accused setting up a plea of not guilty to the charges, the trial proceeded with the prosecution eamining PWs.1 to 5, exhibiting Exts.P1 to P8 and identifying MO1, to bring home his guilt. The accused advanced a defence that the seizure of the contraband was made from PW3, and, when he went over to the Excise Office, to get his release, he was detained, falsely implicated in the crime, and prosecuted for the offence. After reiterating his plea of evidence, when questioned under Section 313 of the Cr.P.C, he examined one witness, DW1, to prove his defence. The learned Sessions Judge, after anxious consideration of the materials tendered in CRL.A.335/2002 3 the case, accepted the case of the prosecution, negatived the defence of the accused and found him guilty of the offences indicted, on which he was convicted and sentenced. 4. I have heard the learned counsel for the accused and also the learned Public Prosecutor. The learned counsel for the accused, assailing the conviction, submitted that the defence canvassed by the accused that he was falsely implicated in the crime when he went over to the Excise Office to get release of PW3, who was arrested on being found of the possession of the contraband produced, is proved by the evidence of DW1, a close relative of PW3. Version of that witness (DW1) that when the accused went over to the Excise Office, in his company, he was intoxicated and his impudence in demanding the release of PW3, reaching the Excise office in such an inebriated condition, infuriated the Excise Officials, was not properly appreciated by the court below. According to the learned counsel, on the facts and circumstances of the case, where the contraband was seized from the property of Radha, the wife of PW3, the defence version could not have CRL.A.335/2002 4 been brushed aside as meritless when nothing has been brought out during the cross examination of DW1 that he was stating falsehood before the court. The accused need only show that his defence is probable and not expected to prove such defence beyond reasonable doubt, submits the counsel. The learned counsel also contended that no convincing record has been produced before the court that there was proper sampling and sealing when sample was collected from the contraband seized. Relying on the decision reported in Sathi v. State of Kerala (2007 KLD (1) (Cri) 248), it is contended that in the absence of cogent and reliable evidence as to sampling and sealing, assuring that the sample was duly collected from the contraband and it remained untampered till subjected to chemical examination, it cannot be stated that no prejudice had been caused to the accused by improper sampling and analysing of the sample collected. Conviction found against the accused is liable to be interfered with as it has resulted in failure of justice, is the submission of his counsel. On the other hand, the learned Public Prosecutor contended that the seizure of the contraband from the accused CRL.A.335/2002 5 is proved by the evidence of the Excise Officials (PWs.1 and 2). His presence at the spot, beside the Excise officials, with the contraband, is deposed to by PWs.3 and 4, two independent witnesses. PW3 was treated as hostile by the prosecution since he denied the witnessing of the occurrence. PW4 was an attestor to Ext.P1 scene mahazar prepared over the contraband seized. PW3 had denied his arrest by the Excise officials, and also the version of the accused as to his going over to the Excise Office to get the release of that witness. In that background, where it was established that the defence set up by the accused was totally false and the materials produced by the prosecution unerringly proved the guilt of the accused, it is submitted, the conviction entered against the indictee for the offences fully supported by cogent and convincing evidence, deserves only to be confirmed. 5. Perusing the records of the case, it appears that the accused set up the defence that the contraband was seized from Thankumon, examined as PW3, and he was falsely implicated since he had gone over to the Excise Officials to get CRL.A.335/2002 6 his release, presumably banking upon the circumstance that the plastic container containing illicit arrack, allegedly from the possession of the accused, was seized from the property of Radha. Even according to the version of the accused, to get the release of PW3, he went over to the Excise party in the company of DW1. If at all, there is any grain of truth in the version set up by the accused, one would expect implication of DW1 also as a co-accused in the case. Further more, it is highly improper and hard to believe that responsible Excise officials like PWs.1 and 2 would falsely implicate the accused in a grave crime under the Act, for the reason that he went over to the Excise Office in an inebriated condition, as deposed to by DW1, and a senior Excise official, PW5, who investigated the crime colluded with his subordinates in such framing up. At any rate, the accused has no case that PW5, the Excise Inspector, who investigated the crime, had any axe to grind against him to implicate him falsely in a grave crime under the Act. Not even a suggestion was put to PW5, when he was subjected to cross examination that the accused had been falsely implicated in the crime. A vague suggestion is CRL.A.335/2002 7 seen made during the cross examination of PW5 that the contraband was seized from PW3, which was denied by the witness in unequivocal terms. Putting forth such a suggestion is different from asking him direct questions as to the defence version that the accused was falsely implicated since he had gone over to the Excise Office, intoxicated, to get the release of a culprit (PW3) involving in an Abkari offence. As already stated, no suggestion in that regard, leave alone any direct question was made when PW5 was in the box. So the defence put up by the accused that he was falsely implicated in the crime, deserves to be taken note only for its rejection. However, there is one most disturbing factor presented on the materials of the case, which has a direct bearing on the sustainability of the conviction imposed against the accused. Though the prosecution through the evidence of PWs.1 and 2, the Excise Officials, substantiated the seizure of the contraband from the possession of the accused, which is seen corroborated to some extent by the evidence of PW3, that by itself is not sufficient to inculpate the accused for the gross CRL.A.335/2002 8 offence indicted against him. The prosecution was bound to establish that the contraband seized from him was arrack, for the possession of which he had no authority. No doubt, the prosecution brought in evidence Ext.P7 chemical analysis report prepared over the sample collected from the contraband. The analysis report disclosed that the sample contained 41.77% by volume of ethyl alcohol. The percentage of ethyl alcohol indicated above, deserves serious consideration and acceptances. But there is one circumstance of the case, the long delay in subjecting the sample for analysis, which cannot be ignored and treated as of no consequence. Seizure of the contraband from the possession of the accused was on 28.4.1999. Ext.P6, the list of thondy articles would indicate that the plastic container, MO1 with its contents and also the sample collected from the container were produced before the court on the very same day. However, what is seen from Ext.P7 chemical analysis report is that despite production of the sample on the date of seizure itself, it was forwarded for examination to the Chemical Examiners Laboratory, Thiruvananthapuram, much later, with CRL.A.335/2002 9 a covering letter from the court on 25.2.2000, and received at the laboratory the next day, 26.2.2000. So, evidently the analysis over the sample seized in the case was conducted nearly eight months after it was collected from the contraband. There is absolutely no evidence in the case to show all along the sample was kept in safe custody and it remained untampered. The statement by the examiner in the certificate that a sealed bottle in a sealed packet was received for analysis and that the seal on the packet was found intact and tallied with the sample sealed, is not at all sufficient to show that the sample bottle remained untampered. There is also no explanation that such a long delay in analysing could not have caused any substantial change in the liquid analysed. So much so, the delay in the analysis of the sample, though it had been produced before the court on the very same day of seizure, demanded cogent and convincing explanation, and in the absence of the same, it cannot be stated that no prejudice was caused to the accused. The court cannot presume that such long delay in analysis of a sample allegedly containing illicit arrack would not affect its result. So much so, in view CRL.A.335/2002 10 of the long delay in the analysis, Ext.P7 analysis report cannot be accepted. That being so, in the given facts of the case, the accused must be given atleast the benefit of doubt, and the conviction imposed against him cannot be sustained. Conviction and sentence imposed against the accused are set aside and he is acquitted of the offence under Section 55 (i) and Section 58 of the Act. The appeal is allowed. S.S.SATHEESACHANDRAN JUDGE prp S.S.SATHEESACHANDRAN, J. -------------------------------------------------------- CRL.APPEAL.NO.335 OF 2002 () --------------------------------------------------------- J U D G M E N T --------------------------------------------------------- 27th March, 2009