IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 30TH JUNE 2009 / 9TH ASHADHA 1931 CRL.A.No. 1451 of 2003() ---------------------------------------- (AGAINST THE JUDGMENT IN S.C.215/2000 DATED 22.8.2003 OF ADDITIONAL SESSIONS JUDGE FAST TRACK COURT-I, MAJERI) .......................................... APPELLANT/ ACCUSED: ---------------------------------- BABU V.K. S/O. VALAKADAVAN KRISHNAN VELLARAMKUNTIL HOUSE, PATHAPIRAYAM, EDAVANNA AMSOM, PATHAPIRIYAM DESAM. BY ADVS. SRI.M.K.DAMODARAN, SENIOR ADVOCATE & SRI.SOJAN MICHEAL RESPONDENT/COMPLAINANT: ------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI.C.M.NAZAR, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ln M.N.KRISHNAN, J. ------------------------- CRL.A.NO. 1451 OF 2003 ------------------------------------- Dated this the 30th day of June, 2009. J U D G M E N T This is an appeal preferred against the conviction and sentence passed by the Additional Sessions Judge, Fast Track Court-I, Manjeri in S.C. No. 215/2000. The accused was charge sheeted for the offence u/s. 55(g) of the Abkari Act. He was found guilty and convicted thereunder. He was sentenced to undergo Rigorous Imprisonment for 5 years and to pay a fine of Rs. 2,00,000/- and in default, to undergo Simple imprisonment for 2 years. It is against this decision that the accused has come up in appeal. 2. The points that arise for determination in the appeal are: 1. Whether there is sufficient evidence to connect the accused with a crime ? 2. Whether the materials are available to hold that the accused has committed the offence u/s. 55(g) of the Abkari Act? 3. Is there anything to interfere with the decision rendered by the court below? CRA. 1451/2003 2 3. Points 1 to 3: It is the case of the prosecution that on 10.6.1997, at about 3.20 p.m. the accused was found in possession of 4 tins each containing 18 litres of wash for the purpose of manufacturing illicit arrack kept in a rubber plantation situated near to the Vilathur Sree Rama Swamy Temple at Pathapiriyam. Pws 1 to 10 were examined, Exts. P1 to P7 and MOs 1 and 2 were marked. The principal question that is argued before this court is regarding the materials to connect the accused with the crime. Learned counsel for the appellant would submit before me that there is no evidence in that regard. I will straightaway refer to the evidence of PW1. PW1 was the Preventive Officer who had conducted search and seizure. It is the version that while they were travelling in a Jeep PW3 Madhavan Nair stopped the Jeep and informed him that wash is kept in his rubber estate and therefore, along with him, they went to that property and found 4 tins of wash kept in the premises. It is deposed that Madhavan Nair told that it has been kept by the accused. The accused was attempted to be apprehended but he was not available and therefore in a 750ml bottle sample taken and sealed. In the cross examination he would depose that he got the information from the road and that information has been recorded but not signed by the informant Madhavan Nair. According to PW1 who had kept it was assertained CRA. 1451/2003 3 only after reaching the spot. Though it is informed that Madhavan Nair had stated the statement alleged to be given by Madhavan Nair is not produced and PW1 does not know where it is. 4. Then he speaks about the sampling and sealing in 750ml bottle. According to him that Madhavan Nair had sent somebody to fetch the accused and along with him one Hameed, member of the patrolling party also was sent. But nobody was apprehended that day and evidence does not indicate anything as to how the identity of the accused was established other than the mere oral statement given by the Madhavan Nair to the patrolling party. PW2 is another Excise Official who had also spoken about the registration of the crime and incapacity to arrest the accused on the spot as not available. He would say that the party knew Madhavan Nair earlier. This evidence does not indicate anything other than the statement of Madhavan Nair that it was the accused who had kept the wash in the premises. PW3 is this Madhavan Nair, he had turned hostile to the prosecution. He had deposed before the court that he has never stated to the police the accused had kept wash in the premises. Though contradictions of the 161 statement were marked it will not help the situation and therefore, the main link goes. The evidence of PW1 does not help the prosecution to establish the factum of the identity of the person to CRA. 1451/2003 4 whom the alleged wash belonged. Then Pws 4 to 9 are the other witnesses of which independent witness had turned hostile and official witnesses have spoken with respect to certain aspects including the Chemical Analysis report which reveals it contained percentage of ethyl alcohol by volume. 5. Other main ingredients to be looked into this case is the sampling and sending of the sample for Chemical Analysis. There is no dispute for the prosecution that the sample was taken in a 750ml bottle. But what was sent for Chemical Analysis was a 375ml bottle. In the forwarding note which is addressed it is stated that 375ml sealed bottle is to be sent for Chemical Analysis. Normally the forwarding note is a request made by the Excise Officials to request the court to send the sample produced before the court for the purpose of Chemical Analysis. When such a difficulty arose regarding difference in size of the bottles PW10 is examined. PW10 is the Junior Superintendent of the court. When sealed samples are produced before the court and accused is also before the court without the knowledge of the accused, it is not at all proper to tamper with the sample for the reason that he will be the person who will be adversely affected. No doubt it is true that a court has got the power to change the container but what is to be assured is that it is the sample that has CRA. 1451/2003 5 been detected is transferred into the container which is properly sealed and sent for Chemical Analysis. When such an act is done by the court it is necessary to have an order either on the administrative side or judicial side for the said purpose. What is spoken to by PW10 is only a oral direction and nothing else. It is always desirable in these type of cases that when the sample is to be sent for Chemical Analysis after the appearance of the accused and a change in the container is necessary then the accused or his counsel should be given a notice and in their presence sealed bottle be opened and the contents transfered into another bottle and then sealed. So it will comply with the requirements that it was the liquid that was taken is transferred to another bottle and sealing is done. The mere oral recital by the Junior Superintendent may not be sufficient to do it. So the method adopted cannot be accepted and in such circumstances the benefit has to go to the accused. On an analysis of the entire material available before me . Even if that sampling and sealing are accepted there is no acceptable evidence to prove that the accused is the owner of the wash that is taken from the estate of the Madhavan Nair or in otherwords there is nothing to connect the accused with the wash. When it is so on the preliminery point itself prosecution had failed. Coupled with the irregularity in sending the sample to the Chemical Examination CRA. 1451/2003 6 would also give added advantage to the accused in the case. Therefore, I find that the finding of the trial court that the accused is guilty of the offence u/s. 55(g) is without material and evidence which is to be interferred with. Therefore, the conviction and sentence is set aside. In the result, Criminal appeal is allowed and the conviction and sentence passed u/s. 55(g) of the Abkari Act is set aside and it is found the accused is not guilty of the offence alleged and he is acquitted and set at liberty. Accordingly, this criminal appeal is disposed of. M.N.KRISHNAN, JUDGE ln.