IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 18TH SEPTEMBER 2009 / 27TH BHADRA 1931 CRL.A.No. 1839 of 2003() ------------------------ SC.495/2001 ON THE FILE OF THE ADDITIONAL DISTRICT AND SESSIONS JUDGE (AD HOC) FAST TRACK COURT II, PATHANAMTHITTA APPELLANT(S): ACCUSED: ------------------------------------------ ABRAHAM, AGED 65 YEARS, S/O. VARGHESE ABRAHAM, CHAMAKKALAYIL VEEDU, PARAKKODU KARA, ADOOR VILLAGE AND TALUK. BY ADV. SRI.S.SUBHASH CHAND RESPONDENT(S): COMPLAINANT: ------------------------------------------------------ 1. STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, ADOOR. 2. THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI.C.M.NAZAR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = Crl.Appeal.No.1839 of 2003 = = = = = = = = = = = = = = Dated this the 18 th day of September, 2009 JUDGMENT The sole accused in S.C.No.495 of 2001 on the file of the Additional District and Sessions Court(Ad hoc) Fast Track Court-II, Pathanamthitta, challenges the conviction entered and the sentence passed against him for an offence punishable under Section 8(2) of the Kerala Abkari Act. 2. The case of the prosecution can be summarised as follows:- On 31.7.1998, at about 7.30 p.m. on the road in front of the Indian Oil petrol bunk at Paracodu in Adoor village the accused was found carrying MO1 black carry bag containing 10 white plastic covers each with a capacity of 200 ml and filled with 150 ml of arrack. Since the appellant was found in possession of 1½ litres of arrack in Crl.Appeal No.1839/03 2 contravention of the ban under Section 8(1) of the Kerala Abkari Act, he has committed offences punishable under Section 8(2) and 55(a) of the Kerala Abkari Act. 3. On the appellant pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 5 witnesses as P.Ws 1 to 5 and got marked 6 documents as Exts.P1 to P6 and 4 material objects as MOs.1 to 4. 4. After the close of the prosecution evidence, the accused was questioned under Sec. 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 when called upon to do so. Crl.Appeal No.1839/03 3 5. The learned Additional Sessions Judge after trial as per judgment dated 6.10.2003 acquitted the appellant of the offence punishable under Section 55(g)of the Act but convicted him of the offence punishable under Section 8(2) of the Abkari Act. For the said conviction he was sentenced to undergo simple imprisonment for two years and to pay fine of Rs.1,00,000/- and on default to pay the fine to suffer simple imprisonment for six months. It is the said judgment which is assailed in this appeal. 6. I heard the learned counsel for the appellant as well as the learned public prosecutor. 7.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. Crl.Appeal No.1839/03 4 The Point:- 8. PW1 is the Excise Officer, Adoor who detected the offence. PW2 is the Preventive Officer who accompanied PW1. PWs.3 and 4 are the independent witnesses to the arrest, search and seizure. Both of them turned hostile to the prosecution. PW5 is the Excise Inspector who filed the final report before court. 9. The appellant was aged 60 years on the date of occurrence. He is now aged 71. According to the prosecution the appellant was found in possession of 10 packets of illicitly distilled arrack, each packet containing 150ml. What PW1, the detecting officer, has stated in Ext.P1, contemporaneous mahazar, is that while he was proceeding along the Adoor-Pathanapuram PWD road he came across the accused in front of the Indian Oil petrol bunk with a plastic over containing something. The time was 7.30 p.m and he claims to have seen the accused in the Crl.Appeal No.1839/03 5 light of the vehicle. Getting suspicious, he restrained the accused and claims to have seized the plastic cover. He found 10 plastic covers each of 200ml capacity containing a liquid which was identified by him as arrack. Each of the packets contained 150ml. PW1 opened one such cover and identifying the contents to be arrack he transfered the contents into a bottle and packed and sealed the bottle. He then arrested the accused and seized the sealed bottled as well as the remaining 9 filled covers and one empty cover as per Ext.P7 mahazar. 10. PW1 has given evidence to the above effect. He would say that he took the accused and the contraband liquor packets including the sample and the seizure document to the Excise Office from where Ext.P3 Crime and Occurrence report were prepared and the case is registered. He claims to have produced the accused before court and prepared Ext.P4 property list for the production of the properties before court. He also claims to have Crl.Appeal No.1839/03 6 given a requisition for sending the sample to Chemical Examiner for analysis. 11. What is born out by the records in this case is a different picture. If the testimony of PW1 is to be believed there should have been a sample bottle besides 9 plastic covers filled with the arrack and one empty cover. But what was produced before the J.F.C.M, Adoor on 2.8.1998 was 10 plastic covers each filled with 150 ml of arrack, the total volume of which was specifically described as 1500 ml and a sample bottle having a capacity of 180ml containing 150 ml of sample. Thereafter, except the oral testimony of PW1 to the effect that he had made a requisition for sending the sample to the Chemical Examiner, there was no forwarding note or requisition produced and marked in this case requesting the despatch of the sample bottle to the Chemical Examiner. The properties which have been marked before the court below gives a still different picture. What was marked as MO2 and MO3 series were four empty Crl.Appeal No.1839/03 7 covers. MO4 series are 6 covers allegedly containing arrack. There is absolutely no explanation as to the presence of 3 empty covers instead of 9 covers filled with arrack. That apart, the prosecution relied on Ext.P6 certificate of analysis stating that the sample of liquid contained 15.19 percent by volume of ethyl alcohol. The said certificate shows that the sample bottle was received along with a letter dated 16.6.1999 of J.F.C.M, Adoor. Neither the office copy of the said letter of the Magistrate nor any forwarding note requesting the forwarding of the sample bottle for chemical analysis has been produced by the prosecution. It is not explained as to what prompted the Magistrate to despatch the sample on 16.6.1999. If it was on the basis of any requisition by the Excise Inspector, one would have expected the same to be produced and marked in the case. The thondi section clerk of the Magistrate's court, who was the custodian of the properties has also not been examined to show that the sample which was eventually despatched to the Chemical Examiner, nearly Crl.Appeal No.1839/03 8 after one year of its production, was the very same sample which was produced on 28.8.1998 before the Magistrate. The prosecution has a duty to establish that the sample, which was allegedly drawn from the contraband liquor possessed by the accused after change of hands eventually reached the hands of the Chemical Examiner in tamper- proof condition (See State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314), Sasidharan v. State of Kerala 9 2007(1) KLT 720 and Valsala v. State of Kerala ( 1993(2) KLT 550 SC). Such being the position, the conviction entered and the sentence passed by the court below overlooking the above vital aspects cannot, therefore, be sustained and are accordingly dislodged. The appellant is found not guilty of the offence punishable under Section 8 (2) of the Abkari Act and is accordingly acquitted thereunder. He shall be set at liberty forthwith. Crl.Appeal No.1839/03 9 In the result, this appeal is allowed as above, The amount, if any, deposited by the appellant before the court below towards fine shall be refunded to him. Dated this the 18 th day of September, 2009. V. RAMKUMAR, JUDGE sj