Abkari; Jose Vs. State [Kerala High Court, 02-03-2016]

Abkari Act – Sections 55(a) and 8(1) and (2) – Merely comparing the seal appearing on the packet in which the sample bottle is placed with the sample of that seal provided from the court will not ensure that the Chemical Examiner, in fact, examined the sample of the contraband allegedly seized.

# Sample of Seal


IN THE HIGH COURT OF KERALA AT ERNAKULAM

BABU MATHEW P. JOSEPH, J.

Crl. Appeal No.740 of 2006

Dated this the 2nd day of March, 2016

AGAINST THE JUDGMENT IN SC 92/2004 of ADDITIONAL SESSIONS COURT (ADHOC), THODUPUZHA DATED 04-03-2006 CP 48/2001 of J.M.F.C., KATTAPPANA

APPELLANT/ACCUSED

JOSE

BY ADV. SRI.JOICE GEORGE

RESPONDENT/COMPLAINANT

STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

PUBLIC PROSECUTOR MS.LISHA M.G.

JUDGMENT

1. The appellant was convicted by the Additional Sessions Court (Ad hoc)-I, Thodupuzha, for the offences under

# Sections 55(a) and 8(1) and (2) of the Abkari Act.

He was sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rupees one lakh and, in default of payment of fine, to undergo simple imprisonment for three months. Challenging the conviction and sentence passed by the court below, the appellant has preferred this appeal.

2. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent.

3. The prosecution case is briefly stated as follows: PW6, the Sub Inspector of Police, Kattappana Police Station, and his party were on patrol at about 4.30 p.m. on C. R. 25-06-2001. While so, PW6 received reliable information that liquor was kept and sold in the tea-shop of the appellant at Murikkatukudy Junction. Therefore, after sending a Search Memo to the court, PW6 and his party reached that place. The appellant was present there. The police party searched the tea-shop in the presence of witnesses when a 5 litre black jerrycan was found beneath a desk in the room of that tea-shop. On examining that jerrycan, 2.5 litres of arrack was found in it. PW6 was convinced that the arrack was so kept there for the purpose of sale. Therefore, the appellant was arrested by PW6 then and there in the presence of witnesses preparing an Arrest Memo. PW6 has drawn two samples of 180 ml. of arrack from the bulk contained in the jerrycan. The sample bottles were sealed and labelled. The jerrycan containing rest of the arrack was also sealed. The samples as well as the jerrycan containing the arrack were seized by PW6 under Ext.P1 Seizure Mahazar in the presence of witnesses. Thereafter, PW6 reached Kattappana Police Station with the appellant, properties and the records and registered Crime No.336 of 2001 of that Police Station in respect of the occurrence. Ext.P6 is the F.I.R. thus drawn by PW6. He has produced the properties and the records before the Judicial First Class Magistrate’s Court, Kattappana. Ext.P7 is a copy of the Search Memo and Ext.P8 is the List of Property. Ext.P9 is a copy of the Forwarding Note. Ext.P10 is the Certificate of Chemical Analysis issued from the Chemical Examiner’s Laboratory, Ernakulam. Ext.P4 is the Rent Deed in respect of the tea-shop and Ext.P3 is the Seizure Mahazar under which Ext.P4 was seized. Ext.P11 is the Certificate of Ownership in respect of the tea-shop. The investigation of the case was conducted by PW8, the Additional Sub Inspector of Police, Kattappana Police Station. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the court.

4. The learned Magistrate, after complying with the required legal formalities, committed the case to the Court of Session, Thodupuzha, and, from there, it was made over to the Assistant Sessions Court, Kattappana. Later, it was made over to the Additional Sessions Court (Ad hoc)-I, Thodupuzha. The court below framed a charge against the appellant alleging the offences under Sections 55(a) and (i) and 8(1) and (2) of the Abkari Act. The appellant pleaded not guilty of the charge. The prosecution examined PWs.1 to 8 and marked Exts.P1 to P11 and M.Os.1 and 2 on their side. The appellant was examined under Section 313 of Cr.P.C. The defence has examined DW1 and marked Exts.D1, D1(a) and D2. The court below, after considering the matter, found the appellant guilty of the offences under Sections 55(a) and 8(1) and (2) of the Abkari Act and convicted him thereunder. He was not found guilty of the offence under Section 55(i) of the Abkari Act. He was acquitted of that offence. He was heard on the question of sentence and imposed the sentence on him.

5. The appellant has raised various contentions challenging the conviction and sentence passed against him. It is the case of the prosecution that the appellant was found in possession of arrack for the purpose of sale at about 4.30 p.m. on 25-06-2001. He was arrested then and there and seized the contraband under Ext.P1 Seizure Mahazar in the presence of witnesses. The contraband including the samples was produced before the court by PW6 along with Ext.P8 List of Property. It can be seen from Ext.P8 that the properties were produced before the court on 26-06-2001. Where the properties were kept after they reached Kattappana Police Station and before they were produced before the court? PW6 or any other official witness has not given any answer for the same. Was it under proper and safe custody? No answer is there. In

# Narayani v. Excise Inspector, 2002 (3) KLT 725

a learned single Judge of this Court observed as follows:

………. In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. ……….”

Therefore, the accused was found to be entitled to the benefit of doubt in that case.

6. It is the prosecution case that samples of the contraband were drawn by PW6 at the time of detection of offence itself and they were sealed. As could be seen from Ext.P8 List of Property, the samples were also produced before the court along with the bulk of the contraband. It is noted in Ext.P8 that the samples were sealed. PW6, the Detecting Officer, deposed also that the samples were so sealed.

7. Ext.P10 is the Certificate of Chemical Analysis issued from the Chemical Examiner’s Laboratory. It is reported in this document that ethyl alcohol was detected in the sample and the sample of liquid contained 40.05% by volume of ethyl alcohol. It is also certified in Ext.P10 that the seals on the packet were intact and found tallied with the sample seal provided. This certification made in this document raises a question. Whether the seal affixed on the sample bottle was compared with the sample impression of that seal by the Chemical Examiner or the seal affixed on the packet containing the sample bottle was compared with its sample seal. The investigating agency does not have a case that they had produced before the court the sample bottles with the seals affixed on them by the Detecting Officer in a packet with the same seal affixed on it. It can be seen from Ext.P8 List of Property that the samples were not produced in packets, but the sample bottles as such were produced. Ext.P9 is a copy of the Forwarding Note submitted for the purpose of subjecting the sample to chemical analysis. In Ext.P9 also, the sample is described as a sealed bottle containing arrack and not a packet containing sample bottle. A copy of the covering letter sent by the learned Magistrate to the Joint Chemical Examiner is also enclosed with Ext.P9. It is stated in this covering letter that the material object was forwarded duly packed and sealed along with the Forwarding Note. It is also stated in this letter that the sample seal used to affix on the packet is also enclosed. When the certification made in Ext.P10 that the seals on the packet were intact and found tallied with the sample seal provided is considered in the light of these facts, it can be found that the comparison of the seals appeared on the packet was made by the Chemical Examiner with the sample of those seals provided from the court and it was not a comparison of the seal appeared on the sample bottle with its sample seal provided in the Forwarding Note. No other meaning can be given to the certification so made in Ext.P10. Therefore, there is no assurance that the sample of the contraband allegedly seized by PW6 from the appellant was, in fact, subjected to chemical analysis in the Chemical Examiner’s Laboratory. In other words, there is no assurance that the Chemical Examiner really examined the sample of the contraband allegedly seized from the appellant. Such an assurance is possible only when the seal affixed on the sample bottle is compared with the sample of that seal provided to the Chemical Examiner. Merely comparing the seal appearing on the packet in which the sample bottle is placed with the sample of that seal provided from the court will not ensure that the Chemical Examiner, in fact, examined the sample of the contraband allegedly seized from the appellant.

8. This Court in

# Rajamma v. State of Kerala, 2014 (1) KLT 506

has held as follows:

“……….The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.”

A Division Bench of this Court in

# Ravi v. State of Kerala, 2011 (3) KLT 353

has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner’s Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused. Therefore, in the case on hand, Ext.P10 Certificate of Chemical Analysis is rendered a doubtful one entitling the appellant to the benefit of doubt.

9. The case of the defence is one of total denial of the allegations raised by the prosecution. The appellant stated while he was examined under Section 313 of Cr.P.C. that he went to the tea-shop for the purpose of taking tea. So, according to him, he had nothing to do with the contraband found in that tea-shop. The prosecution relied on Ext.P11 Ownership Certificate in respect of the tea-shop building in question and Ext.P4 Rent Deed executed in respect of that building for the purpose of establishing the fact that the appellant himself was running that tea-shop from where the contraband was allegedly seized. PW7, the Secretary of Kanchiyar Grama Panchayat, was also examined by the prosecution in support of that case. The defence examined the Secretary of Kanchiyar Grama Panchayat as DW1 and marked Exts.D1, D1(a) and D2 in support of their case. Ext.P4 Rent Deed was relied on by the prosecution for showing that the premises in question were rented out to the appellant for a period of 11 months from 17-01-2001. The signatures of the appellant appearing on the front page of Ext.P4 and on its second page appear to be different. The description of the rented premises is incorporated on the second page. The style of writing appearing on the front page and on the second page also appear to be different. Two witnesses are seen signed on the second page. Their address is not fully given. Ext.P3 is the Seizure Mahazar under which Ext.P4 was seized by PW8, the Investigating Officer. The very same two persons are named as witnesses in Ext.P3 as well. One of the witnesses was examined as PW4. His evidence shows that he had signed in Exts.P3 and P4 on the very same day at the Police Station. PW4 also stated that the other witness signed in Exts.P3 and P4 also signed similarly at the Police Station. Ext.P11, relied on by the prosecution, itself shows that the owner of the building in question is PW5, a lady. It is stated in Ext.P4 that the premises belong to one M.C.John and in his favour Ext.P4 was executed. The owner of the premises was examined as PW5 on the side of the prosecution. She has not supported the prosecution case in regard to the occupation of the premises in question. She categorically stated that, at the relevant time, the building was in the possession of one Babu Mankoottathil. She also stated that the appellant had not occupied that building. When all these documents and statements are considered, it can be safely found that the prosecution failed to prove that the premises in question were in the possession of the appellant at the relevant time.

10. The official witnesses, PWs.3 and 6, alone supported the prosecution version of occurrence. The independent occurrence witnesses, PWs.1 and 2, cited and examined by the prosecution have not supported the prosecution version of occurrence. They were declared hostile to the prosecution. In the light of the various facts already considered, it is not at all safe to enter a conviction against the appellant for the offences under Sections 55(a) and 8(1) and (2) of the Abkari Act. The appellant, at least, is entitled to the benefit of doubt.

11. For the foregoing reasons, the conviction and sentence passed by the court below against the appellant are liable to be set aside. He is entitled to an order of acquittal of the offences alleged against him.

12. In the result, the conviction and sentence passed by the court below against the appellant are set aside. He is acquitted of the offences under Sections 55(a) and 8(1) and (2) of the Abkari Act. He is set at liberty. The bail bond executed by him shall stand cancelled. This appeal is allowed.

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