Evidence Law; Sarada Vs. State [Kerala High Court, 20-05-2016]

Criminal P.C. 1973 – S. 293 – Reports of certain Government scientific experts – Procedure for taking sample – there is inordinate delay in producing the articles, seizure mahazar, sample before court – there is no evidence that they sent the samples in a tamper proof condition. Therefore no inference can be taken for a conviction.

# Sample



Crl.R.P.No.3320 of 2003

Dated 20 th May, 2016









Revision petitioner and another person were accused in C.C.321 of 1996 before Judicial First Class Magistrate, Vaikom for having committed offence punishable under

# Section 55(a) and (i) of the Abkari Act.

The charge against the accused was that on 10.1.1996 at 11.25 am, they were found in possession of 2 litres of arrack and 30 litres of wash for manufacturing arrack in a temporary shed behind house No.VP 9/294 of Vaikom Panchayat. The Preventive Officer, Vaikom seized the article and registered a crime, after completing investigation, Excise C.I Vaikom laid charge report before Judicial First Class Magistrate, Vaikom.

2. To substantiate the allegation, prosecution examined PW1 to 5 and marked Ext.P1 to P4 as documentary evidence. MO1 to MO4 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning them under Section 313 Cr.P.C. They did not adduce any defence evidence. Learned Magistrate convicted the accused under Section 55(a) of the Abkari Act and acquitted them under Section 55(i) of the Abkari Act. Being aggrieved by that, they preferred Crl.A.537 of 2001 before Additional Sessions Judge, Kottayam where the conviction against the second accused was set aside. The conviction against the first accused under Section 55 (a) was confirmed and modified the sentence. Being aggrieved by that, she approached this court.

3. The learned counsel appearing for the revision petitioner contended that search memorandum was not prepared by the Preventive Officer before conducting search in the alleged house. No evidence has been produced in the trial court to prove the possession and ownership of the property and the house. As per the seizure report, one sample was taken from wash, but in Ext.P4 chemical examination report, two bottles of sample were received in the laboratory. This create a doubt in the credibility of the seizure. The evidence of PW1 and PW4, who are the Preventive Officers, are inconsistent with each other. There is inordinate delay in producing the seized article before court. The totality of the evidence shows that the excise officials fabricated documents and foisted a false case.

4. Learned Public Prosecutor admitted that there is delay in producing the seized article. Arrack was also seized from the place of occurrence, which was mentioned in Ext.P1 seizure mahazar. Taking of sample from arrack was not mentioned in Ext.P1. The evidence of PW2 is supporting the evidence of PW1. Since there is no personal enmity towards the petitioner, there is no reason to believe that they foisted a false case.

5. The first contention advanced by the petitioner is that the search was conducted by PW1 without obtaining a search warrant. According to Section 31 of the Abkari Act, Abkari Officer and police officers have power to search house without a warrant. The section says that whenever the Commissioner of Excise or any abkari officer not below such rank as may be specified by the Government in this behalf or any police officer not below the rank of S.I of Police working in the General Executive Branch has reason to believe that the evidence under this Act has been committed and that the delay occasioned by obtaining a search warrant, under the preceding section will prevent the execution thereof, he may, after recording his reasons and the grounds of his belief at any time by day or night, enter and search any place and may seize anything found therein which he has reason to believe to be liable to confiscation under this Act and may detain and search and, if he thinks proper, arrest any person found in such place whom he has reason to believe to be guilty of any offence under this Act.

6. In this context, I have examined the oral evidence of PW1, who is the Preventive Officer of Vaikom Excise Circle Office. The evidence of PW1 shows that on 10.1.1996, he conducted patrol duty with PW4. When they reached near L.P School, Vazhavana desom, they got information that revision petitioner and another person was manufacturing arrack in their house. He prepared a search memorandum and proceeded to the house of the petitioner, at that time she was found mixing some liquid in a shed behind her house. On seeing the excise party, she became frightened. PW1 identified the liquid as wash. On interrogation, she admitted that her husband prepared the wash. PW1 took 500 ml as sample and destroyed the wash at the place of occurrence. MO1, MO2, MO3 and MO4 were also taken into custody after preparing Ext.P1 mahazar. During cross examination, PW1 deposed that sample from arrack was not taken and they took the sample from wash alone.

7. PW4, another Preventive Officer deposed that he prepared a search memorandum and arrived at the place of occurrence and thereafter seized MO1 to MO4 after preparing Ext.P1 mahazar. Therefore A2 was arrayed as accused and he was present at the time of seizure of MO1 to MO4. PW4 also admitted that he took 500 ml as sample. Analysing the evidence of PW1, it is clear that they made inconsistent version with regard to the presence of A1 and A2. According to PW1, A1 was present but at the same time, PW4 deposed that A2 was present. This inconsistent version with regard to occurrence create a doubt in the credibility of the alleged seizure. Even though they deposed that they prepared a search memorandum, that was also not produced before court. This court in

# Dominic v. State of Kerala, 1989 (1) KLT 601

held that violation of the provisions of Section 31 is a serious matter which calls for serious notice about the credibility of the case.

8. PW2 attested Ext.P1 signature. He stated that he signed in Ext.P1 near a culvert not from the place of occurrence but ½ km away from the house of A1. PW3 did not depose anything about the occurrence. PW5 registered the crime, completed investigation and laid charge before court. He admitted that MO1 to MO5 were produced before him. He sent the sample to chemical examiner’s lab and obtained Ext.P4 report. But learned counsel appearing for the petitioner contended that the contents in Ext.P4 is not reliable. It is true that PW1 and PW4 deposed that one sample was taken but in Ext.P4 it is reported that two samples were received in the chemical examiner’s lab. This create a doubt in the report of the chemical examiner. Apex Court in

# State of Rajasthan v. Doulat Ram, (1980) 3 SCC 303

held that where the samples of opium changed several hands before reaching the Analyst, the person who dealt with the article was not examined before court to prove custody. The sample was not tampered with. The effect is that the possibility of sample being changed or tampered with during that period cannot be ruled out. Therefore positive evidence is necessary to show that all steps were taken by the prosecution to show that sample reached before the chemical examiner’s lab in a tamper proof condition. This view as reiterated by Apex Court in another decision

# Valsala v. State of Kerala, 1993 supple 3 SCC 665

The accused is entitled to get the benefit of doubt. This court while discussing the principles of NDPS Act held in

# Ali v. State of Kerala, 2001 (2) KLT 389

that when there is no authenticity of the sample that reached the laboratory, accused is entitled to get the benefit of doubt. According to Excise Manual, a procedure is provided for taking sample. Such procedures were not complied by the excise officials while taking sample. A close analysis of the legal infirmities in connection with the seizure shows that there is inordinate delay in producing the articles before court. There is also delay in producing the seizure mahazar before court. There is also inordinate delay in producing the sample before court, that is on 30.1.1996. Analysing the evidence in its cumulative effect, it is found that prosecution failed to prove the case against the accused. There is no evidence that they sent the samples in a tamper proof condition. Therefore no inference can be taken under Section 293 Cr.P.C for a conviction.

In the result, the conviction and sentence passed by Judicial First Class Magistrate, Vaikom under Section 55(a) of the Abkari Act, which was confirmed by the Sessions Judge, Kottayam is set aside. Accused is acquitted and set at liberty.