The High Court of Kerala allowed the criminal appeal, finding the prosecution failed to legally prove that the chemical analysis report corresponded to the sample drawn from the seized liquor. The conviction was quashed and the appellant acquitted.
Appeal allowed; appellant acquitted; impugned judgment set aside; bail bond cancelled; appellant set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE V.K.MOHANAN
MONDAY, THE 23RD DAY OF SEPTEMBER 2013/1ST ASWINA, 1935
CRL.A.No. 966 of 2004 (A)
AGAINST THE JUDGMENT IN SC.NO.537/2003 of ADDITIONAL SESSIONS JUDGE (FAST TRACK COURT-I), TRIVANDRUM, DATED 7.6.2004
APPELLANT(S)/ACCUSED:
SUJATHA, D/O. SEETHA, NAVUKKOTTUKONATH VEEDU, MELULIYAZHATURA DESOM THIRUVANANTHAPURAM.
BY ADV. SRI.D.AJITHKUMAR
RESPONDENT(S)/COMPLAINANT:
1. STATE OF KERALA - REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
2. EXCISE INSPECTOR, EXCISE RANGE, KAZHAKUTTOM.
BY PUBLIC PROSECUTOR ADV.SMT.M.T.SHEEBA
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23-09-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ami/
V.K.MOHANAN, J.
Crl.A.No.966 of 2004
Dated this the 23rd day of September, 2013.
J U D G M E N T
The appellant is a lady who challenges the judgment dated 7.6.2004 in S.C.No.537 of 2003 of the court of Additional Sessions Judge (Fast Track court-I), Thiruvananthapuram, by which she is convicted for the offence under section 55(a) of the Abkari Act r/w 8(1) of Abkari Amendment Act.
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filed in Crime No.14/99 of Excise Range, Kazhakoottam, S.C.No.537/03 was instituted and on the appearance of the accused, a formal charge for the offence under section 55 (a) of the Abkari Act was framed, which when read over and explained to the accused, she pleaded not guilty. Consequently, the prosecution has examined Pws.1 to 6 and marked Exts.P1 to P6 and also identified M.Os.I to III as material objects. Finally, the trial court has found that the appellant/accused is guilty of the said offence and accordingly she is convicted and on such conviction, she is sentenced to undergo Simple Imprisonment for 1 year and to pay fine of `1 lakh and in default of payment of fine, to undergo simple imprisonment for 6 months.
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corroborated by the evidence of any independent witness. It is also the case of the learned counsel that the evidence of Pws.2 and 3 with regard to the sealing and sampling is not at all convincing. So, according to the learned counsel for the appellant, the trial court is wrong in convicting the appellant, based upon the interested version of Pws.2 and 3, especially when there is no independent evidence. On the other hand, the learned Public Prosecutor strenuously submitted that even though the independent witness is not fully supporting the prosecution, the evidence of Pws.2 and 3 can be safely relied on and acted upon, since their evidence is free of contradiction and doubt. According to the learned Public Prosecutor, the seizure of the contraband article from the possession of the appellant is proved beyond reasonable doubt and therefore the trial court is fully justified in its finding and convicting the appellant/accused. Hence no interference is warranted.
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learned Public prosecutor. I have also perused the deposition of the witnesses and other documents and materials produced from the side of the prosecution.
involved in the case and in the light of the nature of the evidence produced by the prosecution against the appellant, who is a lady, the question to be considered is whether the trial court is correct and justified in convicting the appellant for the offence under section 55(a) of the Abkari Act. The specific allegation of the prosecution against the appellant is that she was found in possession of 7½ ltrs. of IMFL of the brand of Shivas XXX Rum in ten bottles, each bottle having a capacity of 750 ml. in a big shopper bag. In this juncture it is relevant to note that the evidence of Pws.1 and 6, the attestors of Ext.P2 mahazar, did not support the prosecution case, to prove the occurrence. So, the remaining evidence is that of Pws.2, 3 and 5. Pws.2 and 3 are the witnesses who participated in the alleged seizure of the contraband article. On
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examination of the evidence of Pws.2 and 3, it can be seen that the evidence about the arrival of accused at the place of occurrence is not so satisfactory. According to PW3, the seal was affixed and the label bearing the signatures of PW3, the witnesses and the accused was also affixed on the opened bottles that are seized. According to PW3, after placing the bottles in the big shopper, in which the bottles were kept earlier, the big shopper was tied with twine and പ��ചല കയര and then the label containing the seal is affixed on it. But it is pointed out by the defence that, at present, no seal or label is found on the bottles which are opened. The Sessions Judge has also found that, “In the big shopper bag also, at present no seal is found ”. The learned Sessions Judge has stated that, “It has to be noted that at present there cannot be any seal either on the bottle which is opened or on the big shopper bag because the seal affixed on the big shopper and on the opened bottle should have been removed by the Judicial First Class Magistrate court-II, Thiruvananthapuram, for taking sample from the
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bottles for forwarding the same for chemical analysis”. According to me, the above observation and finding of the learned Sessions Judge are unfounded, since there is no material or evidence to that effect.
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Range Office-ല വച� sample എട�ത�� എന� എന�കറ�യ�ല�ല.” So, the evidence of the Detecting Officer is not clear as to from where the samples were taken for the purpose of chemical analysis. In this juncture, the evidence of PW5, the Investigating Officer, is relevant who said that, “He made an application to draw sample from the contraband article.” But during his cross examination, he had deposed that he does not remember the date on which the forwarding letter sent. After verifying the CD, he deposed before the court that, “Forwarding-പ� copy ഇത��ള file-ല ക�ണ�ന�ല�ല.” Though I have repeatedly gone through the evidence of Pws.2, 3 and 5, absolutely there is no whisper before the court by any of these witnesses as to who drawn the sample and how the sample was drawn. So, there is no legal evidence before the court as to how the samples were drawn and who had drawn the samples, and there is no evidence that Ext.P5 chemical analysis report represents the sample allegedly drawn from the contraband article
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which said to have seized from the possession of the appellant. Suffice to say that, the prosecution did not examine the Bench clerk or the thondi clerk of the committal court, or even the Magistrate who had committed the case, to prove that the samples were properly drawn and the samples that sent for getting the chemical analysis report, represents the contraband article allegedly seized from the possession of the appellant.
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court was done upon the supervision of the learned Magistrate and done by the Bench clerk or the thondi clerk, it cannot be ruled out that sample was drawn from the Excise Range office, Kazhakoottam and consequently, PW5 made a request to sent such a sample for chemical analysis. Still then, it is for the prosecution to answer as to who drawn the sample. So, in this juncture it is also relevant to note that, as I indicated earlier, the evidence of Pws.2, 3 and 5 about the sampling and labelling of the contraband articles and the liquor bottles, is not satisfactory. It is in order to get over those defect in the prosecution evidence, the learned Sessions Judge made an observation or finding to the effect that the sample was taken in the committal court. But for the above finding, there is absolutely no evidence. So, according to me, the prosecution has miserably failed to show that Ext.P5 chemical analysis report represents the sample allegedly drawn from the contraband article, that claimed to have seized from the possession of the appellant.
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therefore, I am of the view that, the trial court is wrong in convicting the appellant on the basis of the interested evidence of the prosecution, particularly in the absence of any independent and credible evidence.
In the result, this appeal is allowed acquitting the appellant/accused of all the charged levelled against her and consequently the judgment dated 7.6.2004 in S.C.No.537/03 of the court of Additional Sessions Judge (Fast Track court-I), Thiruvananthapuram, is set aside and the bail bond if any executed by the appellant shall stand cancelled and she is set at liberty.
Sd/-
V.K.MOHANAN, Judge
ami/
//True copy//
P.A. to Judge
3 issues framed by the court
Whether the prosecution proved beyond reasonable doubt that the chemical analysis report represented the sample drawn from the contraband article seized from the appellant.
Whether the trial court was justified in convicting the appellant for possession of Indian made foreign liquor.
Whether the appellant should benefit from the reasonable doubt regarding the chain of custody of samples.
Colour shows how this judgement treated each authority
Ravi Vs. State of KeralaFollowed¶55
Ravi Vs. State of Kerala (2011(3) KLT 353)
SUJATHA, D/O. SEETHA
STATE OF KERALA
V.K.MOHANAN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
V.K.MOHANAN
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