IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN TUESDAY, THE 18TH AUGUST 2009 / 27TH SRAVANA 1931 CRL.A.No. 1590 of 2003() ---------------------------------- SC.441/2001 of ADDL. DISTRICT AND SESSIONS (ADHOC), FAST TRACK COURT-II, PATHANAMTHITTA. .................... APPELLANT/ACCUSED: ---------------------------------- RAJAN, S/O. KRISHNANKUTTY, THEVALLIL LAKSHAM VEEDU, KARUNTHAR MURI, MALLAPPUZHASSERI VILLAGE, KOZHENCHERRY TALUK. BY ADV. MR.SAJITH KUMAR V. MR.P.R.MADHUSOODANAN MR.K.R.SUDHAKARAN PILLAI RESPONDENT(S): ------------------------ STATE, REPRESENTED BY EXCISE INSPECTOR, CIRCLE OFFICE, PATHANAMTHITTA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SMT.M.K. PUSHPALATHA. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. M.N.KRISHNAN, J. ........................................... CRL.A.NO.1590 OF 2003 ............................................. Dated this the 18th day of August, 2009 J U D G M E N T This is an appeal preferred against the conviction and sentnece passed by the Additional Sessions Judge (Adhoc), Fast Track Court-II, Pathanamthitta in S.C.No.441/2001. The accused was charge sheeted for the offences under Sections 8(1) and (2) of the Abkari Act, was found guilty and convicted. He was sentenced to undergo S.I for two years and to pay a fine of Rs. One lakh and in default to undergo further imprisonment for a period of six months. It is against that decision, the accused has come up in appeal. 2. The points that arise for determination in the appeal are (1) whether materials are sufficient to hold the accused guilty for the offences alleged (2) whether the procedural formalities has been properly complied with (3) is there anything to interfere with the decision rendered by the court below. 3. Points. For the sake of convenience, all the points are : 2 : CRL.A.NO.2130 OF 2003 answered jointly. Heard the learned counsel for the appellant as well as the Prosecutor. The learned counsel for the appellant very strongly contends before me that this is a case where it is not proved that the liquid that was seized from the accused had been sent for chemical analysis. It is the case of the prosecution that on 23.11.1998 at about 1.30 p.m the accused was found to be in possession of 2 bottles containing 750 ml of liquor which by taste and smell was found to be illicit arrack. According to the prosecution, the accused was intercepted, examined and bottle was opened and by taste and smell it was found to be illicit arrack and thereafter it was sealed in the presence of the accused and produced before the court. The evidence in this mater consists of oral testimonies of PWs1, 5 and 6 who are the official witnesses. 4. PW5 is the Excise Circle Inspector. He had deposed before the court that he had apprehended the accused and found the accused in possession of two bottles of liquor. He has also stated about its smell and taste as well as sealing of it. In the cross examination, he had admitted that the : 3 : CRL.A.NO.2130 OF 2003 sample was not taken from the place of seizure. He does not give any reason for not taking of sample from there. To a question that he has not seen the sample being taken, the answer is bottles were sealed and given to the court. It is also admitted by him that no ministerial officer of the court has been cited as witnesses. It is also stated by him that he has not given any forwarding note to the court. 5. PW6 is the Excise Inspector, who had completed the investigation. He had admitted in the cross examination that the forwarding note has not been produced before the court. But he would say that CW8 has produced the same. But it is not seen exhibited or marked. He had also not seen the sample being taken. He does not know from which bottle i.e., Mos 1 and 2 the sample is taken. 6. PW1 is the Preventive Officer who speaks about the apprehension, arrest and taking of the liquor into custody. He would submit that the bottles contained full of liquor. He has also submitted that the sample was also not taken from the spot. 7. This is a case where the sample has not been taken : 4 : CRL.A.NO.2130 OF 2003 from the premises. It is attempted to be proceeded on the basis that it was done from the court and sent to the laboratory. The two bottles contained 750 ml capacity each. The sample bottle as is revealed from the chemical analyst’s report is a 180 ml bottle. Now when the sample is taken from the court. First of all there must be a request or an order, either administrative or judicial and it has to be done in the presence of the accused in order to make it leak proof. A learned Judge of this Court in the decision reported in Sadidharan v. State of Kerala (2007 (1) KLT 720 ) had considered this question. His Lordship had 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. The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. The court also held that Committing Magistrates have to take care that contemporary proceedings evidencing the drawing of sample and sending the same to the Chemical Examiner in a tamper-proof condition are recorded in the proceedings before court. : 5 : CRL.A.NO.2130 OF 2003 Sessions Judges trying such cases also should ensure that the concerned member of the staff, who had drawn the sample and despatched the same to the Chemical Examiner duly packed and sealed under the covering letter of the Magistrate, is examined before court during trial. The Public Prosecutor in charge of the case also had a duty to file an additional witness-list for examining the thondy section clerk (property clerk) concerned so as to establish the nexus between the contraband substance and the accuse”. 8. Unfortunately in this case there is absolutely no compliance of the above said mandate. We do not know whether any application has been filed for sending the sample to the chemical analyst. We are in dark as to whether any order has been passed by the court below or the Magistrate court. Nobody is cited and examined to prove the same. When it is so, the court cannot come to a conclusion that the sample that had been sent for analysis is taken from the liquor which is alleged to be seized from the accused. When that link is missing one cannot hold that the accused was found to be in possession of illicit liquor. Therefore, from the materials available in this case, it has to be held that the prosecution has failed to prove the main : 6 : CRL.A.NO.2130 OF 2003 link necessary to connect the accused with the crime and therefore, eminently this is a fit case where the accused has to be acquitted. I do so. 9. In the result, the criminal appeal is allowed. The accused is not guilty of the offences under Sections 8(1) and (2) of the Abkari Act and conviction and sentence passed against him are set aside and he is found not guilty of the offences alleged and is acquitted and set at liberty forthwith. If he has deposited any amount towards suspension of the sentence, it may have to be reimbursed him on a proper application. M.N.KRISHNAN, JUDGE cl : 7 : CRL.A.NO.2130 OF 2003