IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 CRL.A.No. 1123 of 2002() ------------------------ SC.401/2000 of ADDL.SESSIONS COURT (ADHOC)-II, KOTTAYAM .................... APPELLANT(S): ACCUSED 2 ----------------------- VENU, S/O BALAKRISHNAN, PAPPALICHIRAYIL, KURINJI KARA, RAMAPURAM VILLAGE. BY ADV. SRI.SURESH BABU THOMAS SRI.P.RAVINDRA BABU RESPONDENT(S): COMPLAINANT -------------------------- STATE OF KERALA, REPRESENTED BY SUB INSPECTOR OF POLICE, RAMAPURAM THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 1123 of 2002 * * * * * * * * * * * * * * * * * * Dated: 16-09-2009 JUDGMENT The 2nd accused in S.C. 401 of 2000 on the file of the Addl. Sessions Court, Fast Track (Ad hoc - II), Kottayam is the appellant in this appeal. He challenges the conviction entered and the sentence passed against him by the said Court for offences punishable under Sections 55 (a) and 55 (i) of the Abkari Act. 2. The case of the prosecution can be summarised as follows:- On 26-6-1999 at about 1 p.m. in Kuzhikandathil Purayidom at Nellappara Bhagom at Pizhaku Kara in Ramapuram Village, the two accused persons were found in possession for the purpose of sale 37 litres of arrack and the accused have thereby committed offences punishable under Sections 8(2) , 55(a) and 55 (i) of the Abkari Act. Crl.Appeal No. 1123 of 2002 -:2:- 3. The appellant/2nd accused alone stood trial before the court below since the first accused has been absconding. 4. On the appaellant pleading not guilty to the charge framed against him by the court below for offences punishable under Sections 55(a) and 55(i) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 7 witnesses as P.Ws 1 to 7 and got marked six documents as Exts.P1 to P6 and 8 material objects as Mos 1 to 8. 5. After the close of the prosecution evidence, the accused was questioned under Section 313 (1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He did not adduce any defence evidence. 6. The learned Addl. Sessions Judge, after trial, as per judgment dated 22-11-2002 found the appellant not Crl.Appeal No. 1123 of 2002 -:3:- guilty of the offences punishable under Section 55(i) of the Abkari Act but convicted him of the offence punishable under Sec. 55 (a) of the Abkari Act. For the said conviction, he was sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs. 1,00,000/- and on default to pay the fine to suffer simple imprisonment for sixty days. It is the said judgment which is assailed in this appeal by the 2nd accused. 7. I heard Adv. Sri. Jai George, the learned counsel appearing for the appellant and the learned Public Prosecutor. 8. The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not ? The point:- P.Ws 1, 2 and 7 are the independent witnesses to the search and seizure. All of them turned hostile to the Crl.Appeal No. 1123 of 2002 -:4:- prosecution. P.W.3 is the Assistant Sub Inspector of Karingunnam Police Station. He joined the detecting officer (PW4) from the Kurisadi Junction on the way . P.W.4 is the Sub Inspector of Police, Karingunnam who detected the offence. P.W.5 is the Head Constable of Police, Rampuram Police Station who registered the case as per Ext.P4 F.I.R. upon receipt of Ext.P3 F.I.R. of Karingunnam Police Station. P.W.6 was the Sub Inspector of Police, Ramapuram Police Station who completed the investigation and laid the charge before Court. 9. The case of the prosecution as unravelled through the evidence is the following:- On 26-6-1999 P.W.4 the Sub Inspector of Police, Karingunnam Police Station was on patrol duty along with his police party . At about 12 noon when they reached a place called Nellappara near Kurisadi junction, P.W.3 who is the Assistant Sub Inspector of that Police Station joined his police party. While proceeding on patrol duty, they got Crl.Appeal No. 1123 of 2002 -:5:- credible information to the effect that in the rubber plantation belonging to Kuzhikandathil family within the limits of Ramapuram Police Station, there was illicit sale of arrack. P.W. 4 along with his police party proceeded to the said spot. They saw two accused persons in the rubber plantation and attempting to siphon the contents of a can having 50 litre capacity into a smaller can using a black tube . Since the police party and the local people followed them the accused persons abandoned the properties and took to their heels towards the southern side. On proceeding to the spot the police party came across MO1 large can in a pit and that was taken out to find its capacity as 50 litres. There was about 35 litres of some liquid inside the can. The police party was satisfied that it was containing arrack. At a lower level they come across MO2 smaller can having a capacity of 5 litres and that can contained two litres of the same liquid. A black tube was lying near the can. Two glass tumblers were also Crl.Appeal No. 1123 of 2002 -:6:- found near the can. P.W.4 took three samples from the larger can and gave the markings as B1, B2 and B3. Likewise, P.W.4 took three samples from the smaller can and gave the markings S1, S2 and S3. The samples as well as the two cans and the remaining liquid were sealed and taken into custody under Ext.P1 mahazar to which the independent witnesses affixed their signature. P.W.4 and his police party returned to Karigunnam Police Station along with the properties and the mahazar and registered Ext.P3 F.I.R. as Crime No. 63 of 1999. He also produced the properties before Court (J.F.C.M. II , Thodupuzha). Since the place of occurrence was within the limits of Ramapuram Police Station he forwarded the records to that police station. P.W.5 who was the head constable of Ramapuram Police Station holding charge of the General Diary, on receipt of records sent by P.W.4 registered Ext.P4 F.I.R. as Crime No. 71 of 99 of Ramapuram Police Station. On 27-6-1999, P.W.6 who Crl.Appeal No. 1123 of 2002 -:7:- was the Sub Inspector of Police, Ramapuram Police Station took over the investigation of the case. He questioned the witnesses and gave Ext.P5 forwarding note for sending the samples for chemical examination and claims to have submitted a forwarding note for chemical examination. Ext.P5 is the certificate of chemical examination received after chemical examination. After the conclusion of investigation P.W.6 laid the charge before Court. The appellant surrendered before Court on 23-2- 2000. 10. The prosecution seeks to connect the appellant with the offence by attempting to prove that the samples taken from the smaller can for analysis were found to contain 77.94, 78.59 and 77.56 percent by volume of Ethyl Alcohol. In the first place, the three samples allegedly drawn from the larger can have not been forwarded for chemical analysis. Secondly, if the testimony of P.W.4 is to be believed, he had taken the three samples from the small Crl.Appeal No. 1123 of 2002 -:8:- can. If the three samples were taken from the same can, it is not explained as to why the strength of ethyl alcohol is different in each of the samples as per Ext.P5 certificate of analysis. The more important aspect to be noted is that the prosecution has not been able to show that the it was the very same samples which were allegedly drawn from the scene of detention by P.W.4 which eventually reached the hands of the Chemical Examiner in a tamper - proof condition. When the properties in the form of samples admittedly changed hands, the prosecution had a duty to prove that the samples drawn from the can allegedly possessed by the accused eventually reached the hands of the chemical examiner in the very same condition without anybody having had any opportunity to tamper with the same. See State of Rajasthan v. Daulath Ram- AIR 1980 SC 1314 , Sasidharan v. State of Kerala – 2007 (1) KLT 720 and Valsala v. State of Kerala - 1993 (2) KLT 550 SC . The evidence in this case as spoken to by Crl.Appeal No. 1123 of 2002 -:9:- P.W.4 only shows that P.W4 produced the properties before Court. The detection and seizure were on 26-9-1999. P.W.4 does not mention the date on which he produced the properties before Court or which is the court where he produced the properties. A perusal of the lower court files will show that the properties were produced before the J.F.C.M. II Thodupuzha only on 30-6-1999 i.e. four days after the seizure for which no explanation has been forthcoming. What is sill more surprising is the fact that out of the six samples three of them eventually found their way to the Chemical Examiner's Laboratory, Thiruvananthapuram pursuant to a requisition dated 1-8- 2000 from the J.f.C.M., Pala. What prompted the J.F.C.M., pala to forward the three samples to the Chemical Examiner is not explained. There is no forwarding note or requisition from the investigating agency produced. It is not explained as to how the three samples reached the J.F.C.M. Pala from the J.F.C,M. II, Thodupuzha and who all are the Crl.Appeal No. 1123 of 2002 -:10:- persons who handled the three samples in the meanwhile. The prosecution has a duty to explain that during the period from 30-6-1999 to and 1-8-2000 nobody had any opportunity to tamper with the samples and that the samples were in safe custody. No evidence has been adduced to explain this aspect of the matter. In the absence of this link evidence, the conviction recorded by the court below cannot be sustained. It cannot be conclusively held that Ext.P5 certificate of analysis pertains to the very same samples which were drawn from the smaller can allegedly possessed by the two accused persons. Both the accused persons could not be arrested from the spot. The appellant (A2) surrendered before the Court long thereafter on 23-2-2000. A1 is still absconding. Such being the position, the finding of guilt recorded by the court below overlooking these vital aspect of the matter cannot be upheld and is accordingly dislodged. The appellant is found not guilty of the offence punishable under Crl.Appeal No. 1123 of 2002 -:11:- Sec. 55 (a) of the Abkari Act and is accordingly acquitted thereunder. He shall be set at liberty forthwith. In the result, this appeal is allowed. The amount, if any, deposited before the courts below towards fine shall be refunded to the appellant. Dated this the 16th day of September 2009. Sd/-V. RAMKUMAR, (JUDGE) /true copy/ ani. Crl.Appeal No. 1123 of 2002 -:12:- V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.Appeal No. 1123 of 2002 * * * * * * * * * * * * * * * * * * Dated: 16-09-2009 JUDGMENT