Allowed

Vijayan v. State of Kerala

Kerala HC5 Nov 2013CRL.A/1019/2005

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the Criminal Appeal against a conviction under the Abkari Act, setting aside the trial court's judgment. The Court held that the prosecution failed to prove the chain of custody or the legal basis for the chemical analysis report, applying precedents regarding sampling of liquor.

What did the court decide?

The judgment dated 8.6.2005 set aside; the appellant was acquitted and set at liberty; bail bond stood cancelled.

Vijayan Vs State of Kerala — Kerala HC (2013) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE V.K.MOHANAN

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TUESDAY, THE 5TH DAY OF NOVEMBER 2013/14TH KARTHIKA, 1935

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CRL.A.No. 1019 of 2005 ( )

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AGAINST THE JUDGMENT IN SC 244/2002 of ADDITIONAL DISTRICT & SESSIONS JUDGE (AD HOC), FAST TRACK COURT-I, PATHANAMTHITTA, DATED 08-06-2005

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(CP 58/2000 of J.M.F.C.-II,PATHANAMTHITTA)

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APPELLANT(S)/ACCUSED::

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VIJAYAN, S/O. BHASKARAN, EETTIMOOTTIPADIYIL OTTAPLACKAL VEEDU, VETTOOR KARA, PRAMADAM VILLAGE, KOZHENCHERRY TALUK.

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BY ADV. SRI.V.PHILIP MATHEWS

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RESPONDENT(S)/COMPLAINANT::

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

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BY PUBLIC PROSECUTOR ADV.SRI.E.M.ABDUL KHADIR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05-11-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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ami/

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V.K.MOHANAN, J.

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Crl.A.No.1019 of 2005

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Dated this the 5^th day of November, 2013.

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J U D G M E N T

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The challenge in this appeal is against the judgment dated 8.6.2005 in S.C.No.244/02 of the court of Additional District and Sessions Judge (Ad hoc), Fast Track court-I, Pathanamthitta, at the instance of the sole accused in the above sessions case as he is convicted and sentenced for the offence punishable under section 8 r/w 55(a) of Abkari Act.

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The prosecution allegation is that on 8.5.1998 at about 6.40 p.m., when the Excise Range Inspector and party of Konni Excise Range were on patrol duty through Kumbazha-Punalure public road, the accused was found walking through that road at Eetty moottypady carrying a black cannas, which contained illicit arrack. Thus according to the prosecution, the accused has committed

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the offence punishable under section 8 r/w 55 of the Abkari Act and on that allegation, Crime and occurrence report No.20/98 was registered in the Konni Excise Range office.

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On completing the investigation, a charge was laid in the court of Judicial First Class Magistrate-II, Pathanamthitta, wherein C.P.No.58/00 was instituted and the learned Magistrate by his order dated 29.6.2002 committed the case to the Sessions court wherein the case was renumbered as S.C.No.244/02 and eventually the said case was transferred to the present trial court for disposal. Thus when the accused appeared, a formal charge was framed against him for the offences punishable under section 8 r/w 55(a) of the Abkari Act, which he was denied when put to him. Thereafter, the prosecution adduced its evidence by examining Pws.1 to 3 and producing Exts.P1 to P5 documents. M.O.1 also identified as material object. Though no documentary evidence adduced, DW1 was examined from the side of the defence. According to the

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learned Judge of the trial court, the prosecution has succeeded in establishing its case against the accused of being found keeping possession of 5 ltrs. of arrack, as alleged and accordingly the accused was found guilty who was then convicted thereunder. On such conviction, the accused was sentenced to undergo rigorous imprisonment for a period of 2 years and to pay fine of `1 lakh and in default to undergo simple imprisonment for 2 years for the offence punishable under section 8 r/w 55(a) of the Abkari Act. Set off under section 428 of Cr.P.C. was allowed. It is the above finding, conviction and sentence that are challenged in this appeal.

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Heard Adv.Sri.V.Philip Mathews, learned counsel for the appellant and Adv.Sri.E.M.Abdul Khadir learned Public Prosecutor for the State.

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It is pertinent to note that in the present case, no independent witnesses were examined and the entire prosecution case rest upon the evidence adduced through

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the official witnesses who were examined as Pws.1 to 3, among which Pws.1 and 2 were then working as Excise Range Inspector and Preventive Officer respectively attached to Konni Excise Range, who were involved in the detection of the crime. Whereas, PW3 is the then Excise Inspector who undertaken the investigation and finally laid the charge. When Pws.1 and 2 were examined, they have deposed strictly in terms of the prosecution allegation. According to them, when they were conducting patrol duty on 8.5.1998 and at about 6.40 p.m. while they reached Kumbazha-Punalure public road and while proceeding from west to east, they saw the appellant/accused walking towards them from the opposite direction, after having entered into that main road from a side road, who was carrying a black cannas having the capacity of 5 ltrs. According to them, on seeing the Excise jeep, the appellant/ accused got perplexed and he ran away towards south from the road after abandoning the cannas which was possessed

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by him. According to Pws.1 and 2, though they chased him, they could not arrest the appellant/accused and their attempt resulted in vain. Therefore, according to Pws.1 and 2, they returned to the place at which the appellant/accused abandoned with can and content of the cannas was identified as arrack by smelling and tasting in the presence of the witnesses. According to Pws.1 and 2, the witnesses who were present there told them that the person who ran away from the spot is one Vijayan, who is the appellant/ accused herein. Pws.1 and 2 had also stated about the procedures adopted by PW1 towards the seizure of the contraband article and the M.O.1 cannas and drawing of sample from cannas etc. According to them, after completing the procedure towards the seizure, they went to the Excise Range Office and on next day, the properties were produced before the court. Thus when PW1 was examined, Ext.P1 seizure mahazar, Ext.P2 crime and occurrence report, Ext.P3 property list, Ext.P4 report

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requesting the court to take sample and to send the same for chemical analysis etc. were filed. Accordingly, Ext.P5 chemical analysis report was received and the same is also marked through PW1. PW1 has also identified M.O.1 can. PW3 is the then Excise Inspector attached to Konni Excise Range who laid the charge on completing the investigation. From the side of the defence, the Pramadom Village Officer was examined as DW1 to prove that there was no road joining with Kumbazha-Punalure road. Considering the above evidence and materials, the trial court concluded that the prosecution has succeeded in establishing its case against the appellant/accused and accordingly he is convicted.

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Learned counsel for the appellant vehemently submitted that in the present case that, no forwarding note is produced and no sample seal also provided and therefore Ext.P5 chemical analysis cannot be relied. It is also pointed out that there is no evidence to prove the proper sampling

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and that the samples were kept intact from tampering the same. Thus according to the learned counsel, the prosecution has miserably failed to prove its case against the appellant beyond reasonable doubt. On the other hand, the learned Public Prosecutor submitted that the factum of seizure of the contraband article from the possession of the appellant is proved through the evidence of Pws.1 and 2, and other documentary evidence and the contraband article had been produced before the court on the next day itself and Ext.P5 chemical report shows that the learned Magistrate sent the sample to the Chemical Examiner and therefore the evidence of prosecution is sufficient to prove the guilt of the appellant/accused and therefore the trial court is justified in its finding and hence no interference is warranted.

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I have carefully considered the arguments advanced by the learned counsel for the appellant as well as the learned Public Prosecutor. I have also perused the evidence

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and materials on record.

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After having heard the rival contentions and in the light of the evidence and materials on record, the question to be considered is whether the findings and the conviction recorded by the trial court against the appellant are sustainable. In the present case, even though there is no independent evidence, according to me, the evidence of Pws.1 and 2 are sufficient to hold that at about 6.40 p.m. on 8.5.1998, M.O.1 can containing some liquid was seized. It is also proved that the M.O.1 can, that has been seized, has already been produced before the court on 9.5.1998. In a case like the present one, where the offence alleged is under the provisions of the Abkari Act, it is the un-shifted burden of the prosecution to prove that the materials seized from the possession of the appellant/accused are contraband articles and it is kept in his possession in violation of the provisions of the Abkari Act. In the present case, neither PW1 nor PW2 has got a case that at the time

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of the alleged seizure, they had drawn the samples from the article contained in M.O.1 cannas. The case of the prosecution is that the contraband article allegedly seized by Pws.1 and 2 was produced before the court on the next day itself, ie., on 9.5.1998 and the court was requested to take the samples and sent the same for chemical analysis. According to me, the above case of prosecution is unfounded and baseless. Though PW1 said to have claimed that he filed a report ie., Ext.P4 before the court, while producing the material objects, for taking the samples and sending it to the court, there is no such request in Ext.P4. The operative portion of Ext.P4 reads as follows : “Hence I am producing the records in original ie.: Mahazar, Occurrence report, Chemical requisition, list of thondy articles and thondy article which is sealed and labelled before the Honourable Court through Shri.T.R.Sivaraman Nair, Preventive Officer and K.Shajeeb Excise Guard of this office.” There is no request in Ext.P4 for drawing the

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samples and sent the same for chemical examination. But from the above extracted portion of Ext.P4, it appears that there is a document named “chemical requisition”, but no such document is seen produced and marked during the trial. So, I fail to understand on what basis, the committal court issued letter dated 15.5.1998 purportedly for forwarding the samples.

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Suffice to say, no staff of the court who drawn the sample, if any, had been examined from the side of the prosecution. So, absolutely there is no evidence as to who drawn the sample and when the sample was drawn and what was the measures taken to ensure correct result of chemical analysis on such sample and the precautionary measures taken to prevent tampering of the sample, if any taken. According to me, the position is now covered by a decision of this Court in Nalinakshan Vs. State of Kerala (2012(4) KLT 575) . In that case, Ext.P3(a) order was produced therein whereby the learned Magistrate ordered

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to take samples and destroy the balance. But in the present case, no such order of the learned Magistrate is produced. In the said decision, this court has held that,

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“xxxxxx Other than the so called order of the learned Magistrate for taking sample and destroying the remaining quantity, there is no evidence regarding the taking of sample and the destruction of the contraband. Who took the sample, when took and when it was forwarded to the chemical examiner are not at all borne out by evidence. Neither any witness was examined regarding the taking of the sample or any report of any staff of the court regarding the compliance of the order of the court is brought in evidence. In effect, there is nothing to show that the sample was taken from the liquid contained in M.O.1 or that Exhibit P5 is relating to the contraband seized by Pws.1 and 4.”

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According to me, the above decision is squarely applicable in this case in the light of the facts and circumstances of the present case, which are more or less the same as that of the case covered by the above decision. Similarly, a Division Bench of this Court in the decision reported in Ravi Vs. State of Kerala (2011(3) KLT 353) it has held that, “Prosecution has a duty to prove that it was the sample

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taken from the contraband liquor seized from accused which had reached the hands of Chemical Examiner in a foolproof condition.” The available evidence in the present case, according to me, is not sufficient to withstand the above test laid down by the Division Bench of this Court. So, absolutely no evidence is produced by the prosecution to prove and establish that Ext.P5 chemical analysis report pertained to the contraband article allegedly seized from the possession of the appellant/accused, as there is no clinching, acceptable and legal evidence to show that the sample reached in the hands of the chemical examiner, represents the contraband article allegedly found in possession of the appellant.

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In the light of the above discussion and the evidence and materials referred to above, and in view of the decision cite supra, according to me, the prosecution has miserably failed to prove its case against the appellant/ accused beyond reasonable doubt and the learned Judge of

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the trial court ought to have extended the benefit of doubt in favour of the appellant. Therefore, in this appeal extending the benefit of doubt in favour of the appellant, the conviction recorded by the trial court against the appellant/ accused has to be set aside and I do so.

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In the result, this appeal is allowed setting aside the judgment dated 8.6.2005 in S.C.No.244/02 of the court of Additional District and Sessions Judge (Ad hoc), Fast TrackI, Pathanamthitta, and the appellant is acquitted of all the charges levelled against him and the bail bond if any executed by him, stand cancelled and he is set at liberty.

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Sd/- V.K.MOHANAN, Judge

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ami/

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//True copy//

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P.A. to Judge

Vijayan v. State of Kerala

Case brief

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Vijayan v. State of Kerala

Case brief

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