Allowed

Sumathy v. State of Kerala

Kerala HC8 Mar 2016CRL.A/1952/2004

Case brief

AI extract

What is this about?

The High Court of Kerala allowed the appeal and acquitted the appellant. The Court held that the prosecution failed to prove beyond reasonable doubt that the seized arrack belonged to the appellant due to procedural lapses, including the absence of a forwarding note and witness signatures on the seizure label.

What did the court decide?

Conviction and sentence under s.8(1) and (2) of the Abkari Act set aside; appellant acquitted and set at liberty.

Sumathy Vs State of Kerala — Cheque Dishonour | Kerala HC (2016)

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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 P.D.RAJAN

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TUESDAY, THE 8TH DAY OF MARCH 2016/18TH PHALGUNA, 1937

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CRL.A.No. 1952 of 2004 (A)

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AGAINST THE JUDGMENT IN SC 1939/2001 of ADDITIONAL SESSIONS JUDGE FAST TRACK COURT-1,THIRUVANANTHAPURAM DATED 28-10-2004

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APPELLANT(S)/ACCUSED:: --------------------SUMATHY, D/O. KUNJI, PANAYIVILA VEEDU, WARD NO.12, HOUSE NO.32, PAROTTUKONAM DESOM, ULLOOR PAKUTHI, THIRUVANANTHAPURAM TALUK.

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BY ADVS.SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.KRISHNADAS P. NAIR SMT.K.L.SREEKALA SRI.HARIDAS P.NAIR SRI.PRABHU VIJAYAKUMAR

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RESPONDENT(S)/COMPLAINANT;:

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

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R1 BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 08-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

acd

'C.R.'

P.D. RAJAN, J.

Crl.Appeal No.1952 of 2004

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Dated this the 8^th day of March, 2016

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JUDGMENT

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This appeal is preferred by the accused against the

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judgment of conviction and sentence in S.C.No.1939/2001 of

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Additional Sessions Judge, Fast Track Court-I,

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Thiruvananthapuram u/s.8(1) and (2) of the Abkari Act. The charge against the appellant is that on 17.09.1998 at 12.30 p.m, she was found in possession of 1 litre of arrack in MO1 on the northern side of Alamcode bridge across Amayizhanchan thodu

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by the Preventive Officer, Excise Range Office, Thiruvananthapuram. She was arrested and the contraband articles were seized, reaching at the Excise Office, registered a crime. After completing investigation, the Excise Inspector,

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Excise Range, Thiruvananthapuram laid charge before Judicial

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Criminal Appeal No.1952/2004 2

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First Class Magistrate-II, Thiruvananthapuram. Subsequently,

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the case was committed to Sessions Court,

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Thiruvananthapuram from there it was made over to Additional Sessions Judge.

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In pursuance of the charge, prosecution examined

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five witnesses and marked Exts.P1 to P4 as documentary evidence. MO1 was admitted as material object. While questioning the accused, she denied all the incriminating circumstances brought out in evidence against her. In support of her defence contention DW1 was examined in the trial

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Court. The learned Additional Sessions Judge convicted the accused u/s.8(1) & (2) of the Abkari Act and sentenced to simple imprisonment for one year and fine of 1 lakh in default₹ imprisonment for six months. Being aggrieved by the conviction and sentence, the accused preferred this appeal.

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Heard both sides. The main contention advanced by

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the learned counsel appearing for the appellant is that no

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Criminal Appeal No.1952/2004 3

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evidence has been adduced by the prosecution to show that articles seized were properly sealed and affixed label on it.

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There was no forwarding note prepared at the time of sending the sample to the Magistrate therefore it is doubtful whether the very same article was sent to the chemical examination lab.

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In reply learned Public Prosecutor submitted that

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all articles seized were properly sealed and affixed seal on the

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samples. The chemical examination report shows the nature of analysis and indicate the manner in which it was forwarded to the chemical examiner. Therefore a presumption can be drawn that it was properly sealed, labelled and submitted before the

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chemical examiner with a forwarding note.

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Now the question is whether mere arrest of the accused

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with MO1 is sufficient to prove that she was in possession of arrack. The evidence of PW1 shows that he arrived at the place of occurrence on the basis of prior information. According to the Kerala Excise Manual Chapter XXV Rule 24

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after seizure of the contraband articles, a mahazar containing necessary particulars should be prepared by the seizing officer. All articles recovered must at once be carefully packed, labelled and sealed in the presence of the witnesses, who shall sign the label affixed to each article. The signatures of the witnesses should be taken from the place of seizure itself and during trial, they should be called upon to prove their signature given in the label. The detecting officer is also bound to prepare mahazar mentioning the details of the articles seized and mention the name of the witnesses present at the time of seizure. The articles seized with mahazar and search list should be produced before the Excise Inspector along with the person arrested. The property seized may be sent to the Excise Range Office having jurisdiction over the scene of occurrence . If sample is not taken from the place of occurrence, the officer depositing articles may take sample in the office of the Excise Inspector. The Excise Inspector

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of the Range shall affix his seal on the sample so taken.

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The arrack was seized by PW1, the Preventive

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Officer, Excise Range Office, Thiruvananthapuram, who deposed that on 17.9.1998 at 12.30 p.m. while he was proceeding through the road by the side of Amayizhanchan thodu, the appellant was found carrying MO1 at Alamcode bridge. On seeing the Excise Party, she became frightened ,

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PW1 intercepted her and inspected MO1 in which he detected arrack. The appellant was arrested and arrack was taken into custody after preparing Ext.P1 mahazar. The independent witnesses attested Ext.P1 mahazar. PW2 Excise Guard deposed that he sealed MO1 and affixed label in it. PW1 and PW2 deposed that independent witnesses signed in the label affixed on it. The Preventive Officer brought arrack and the accused in the Excise Range Office, Thiruvananthapuram, where they registered Ext.P3 crime and occurrence report. After completing investigation, PW5 laid charge before Court.

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The seized articles were produced before Court, from there it was forwarded to the chemical examiner's lab and obtained Ext.P4 report, in which 21.13% volume of ethyl alcohol was detected in the sample. But there was no independent evidence to prove the seizure. PW3 attested Ext.P1 mahazar, but he did not support the prosecution case. He stated that he did not see the seizure of MO1 from the possession of the appellant. The appellant contended that she was arrested from her house. To substantiate that contention she examined DW1 who deposed that the appellant was arrested from her house by the Excise party. Even though DW1 deposed so, no other evidence has been adduced by her to substantiate that contention.

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Here, immediately after the arrest of the appellant, the contraband articles were seized at the place of occurrence, after taking sample. They failed to affix label in MO1. Affixing label in the contraband articles and obtaining

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signature in the presence of the independent witnesses ensure

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the compliance of the procedure provided in the Abkari Act and Kerala Excise Manual for Crime-Detection, enquiry, trials. The signatures should be secured in the label and seal the articles in the presence of the independent witnesses which will fasten the credibility of the evidence of the Excise Officials. In this case, PW2 admitted that no label was found in the seized articles when he was examined before court. When there is no label in the seized articles and there is violation of the procedures provided in the Kerala Excise Manual, more independent evidence is necessary to prove the

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seizure. Therefore, it is necessary to obtain the signature of the witnesses, the accused and the officer shall put his signature in the label affixed in the articles. When there is no signature of the witnesses, the accused and the officer in the label, no credibility can be fastened upon

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such evidence.

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Second contention was that no forwarding note was

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prepared at the time of sending it to the Magistrate Court. I have examined whether the sample was taken in a fool proof manner in order to avoid the chance of tampering. It is the primary duty of the prosecution to prove the case beyond reasonable doubt that the appellant was in possession of arrack. To prove that, they have to adduce cogent and convincing evidence. The Government of Kerala enacted the Kerala Chemico -Legal Examination Rules in supersession of the existing Rules on the subject in order to ensure the transparency in the transmission of articles for chemical analysis to the chemical examiner. The main object is to ensure the proof of identity, the impossibility of any interference during transit and the preservation of the articles from decomposition and tampering. The chemical examiner shall bring to the notice of Government every case in which these Rules are not strictly adhered to. The Excise

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Criminal Appeal No.1952/2004 9

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Officer, the Police Department and the Magistracy are bound to follow the directions in the rules. The Chemical Examiner, in such cases, shall as far as practicable furnish a quantitative analysis stating the results of the analysis, which is conclusive proof u/s.293 of the Code of Criminal Procedure. The report being legal is a very clinching piece of evidence in any investigation, inquiry, trial or other proceedings under the Code.

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It is true that the contents of the report of the

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chemical examiner under Section 293 of the Code of Criminal Procedure (for short Code) is subject to judicial scrutiny. A report stating only the expert's opinion or conclusion without furnishing any data or without showing the particulars on the basis of which he arrived at the conclusion in the analysis, may lose its essence and efficacy. Therefore, while conducting examination on various articles, the responsibility of the prosecution is to produce those articles in a fool proof manner

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and it shall be the duty and responsibility of the prosecution

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to call the Chemical Examiner who issued the report to testify his report in evidence, without prejudice to anything contained

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in section 293 of Cr.P.C. The report of the chemical examiner shall be signed by an officer, who, from personal knowledge can testify to the correctness of the report embodied in it. Miscellaneous examinations is mentioned in Rule 17 of the Kerala Chemico-Legal Examination Rules (hereinafter referred

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to as Rules) which reads as follows:

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“17.(a) Under this head shall fall such examination as the estimation of morphine and other ingredients in opium, examination of ganja and other narcotic drugs, coins, documents, paints, fire-arms, bullets etc. in shooting cases, gun barrel residues, fire-works and other explosives, incendiaries, articles involved in cases of explosion, bones, hairs, liquors, illicit arrack samples and blood specimen involved in prohibition offences, etc.

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(b) xxx xxx

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(2) In all miscellaneous cases, where samples or thondy articles are required to be examined by the Chemical Examiner, the concerned Police Officer, or Excise Officer shall submit along with the charge sheet, the prescribed application before the court for forwarding the articles to the Chemical Examiner's Laboratory, for examination or analysis as the case may be.”

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Normally, a forwarding note has to be prepared by

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an investigating officer in the prescribed form and send it to the Chemical Examiner's Lab according to the direction issued by the Home Department by G.O.(P) No.16/87/Home dated 2- 2-1987. The forwarding note should be addressed to the chemical examiner by either Excise or Police officers for onward transmission to the laboratory through Court. If the original article is forwarded to the chemical examiner through the Court, there is no possibility of getting original forwarding note during trial. In such a situation, it is the primary responsibility of the detecting officer to furnish a copy of the forwarding note along with final report so as to ensure that he had complied with the procedures provided under Rule 17 (a) (b)(2) provided in the Kerala Chemico-Legal Examination Rules. If the Excise Inspector deposes that he had forwarded the sample affixing his seal in the forwarding note in a fool proof manner through the Court for onward transmission to the chemical examiners Laboratory, he has to bring evidence to

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Criminal Appeal No.1952/2004

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show that he had discharged his official duty in a proper manner.

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The possibility of tampering of sample when sample changed several hands before reaching public

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analyst has been explained by the Apex Court in the State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], in which the Court held that it is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Aldanram, P.S., Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody to seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period - a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were handed over to the public analyst the

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Criminal Appeal No.1952/2004

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seals remained intact. In Valsala v. State of Kerala [1993(2) KLT

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550 (SC)] , Apex Court observed that the article seized appears to have been not kept in proper custody and proper form so that the court can be sure that what was seized only was sent to the Chemical Examiner. There is a big gap and an important missing link. In the mahazar Ext.P2 which is immediately said to have been prepared, there is nothing mentioned as to under whose custody it was kept after seizure. Apex Court in Hardip Singh v. State of Punjab [(2008) 8 SCC 557] had occasion to consider the relevancy of the report of the Chemical Examiner while discussing the provisions of Section 42 and 44 of the Narcotic Drugs and Psychotropic Substances Act, 1985. This Court in Rajamma v State of Kerala [2014(1) KLT 506] held as follows:

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““But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me,

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there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.

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Therefore, I am of the opinion that when any liquor or illicit arrack is produced before Magistrate as the case may

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be, he shall follow the instructions laid down in Rules,

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mandatory to prepare a forwarding note and carefully include their advice to the chemical examiner, about the nature of the sample to the examination and furnish other information likely to assist the chemical examiner. Therefore, forwarding letter is mandatory and once it is forwarded to the chemical examination lab it will never return to the Magistrate Court unless specific direction is given to the chemical examiner's lab. On the other hand, it is the duty of the investigating officer to furnish a copy of the forwarding note along with the final report. In certain cases, in the copy of the forwarding letter, sample seal of the officer is not affixed in the space provided for affixing the seal. For the sake of argument I can

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say that no time is fixed for sending sample, therefore speedy action is required, otherwise no purpose will be served for the indication in Para 77 of the Kerala Excise Manual. Therefore

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it is presumed that the seizure should be reported to the jurisdictional Magistrate and request should be forwarded in the proper form (provided in the Kerala Chemico Legal Analysis) for sending sample for analysis. However prompt reports, proper preservation of sample, proper sending of sample with its authority and proof, proper analysis of the sample and obtaining reports are necessary. Even after amendment of the Abkari Act, this position has not changed.

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In this case, prosecution failed to produce forwarding note in the trial Court, moreover, signatures of the witnesses, detecting officer and the accused were not found in the label. When the sample of arrack is handed over to various persons in Excise Department and Court before its reaching in

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the Chemical examiner's Laboratory, prosecution has to prove

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that while in such custody the sample were not tampered with. Omission to prepare a forwarding note shows that prosecution failed to rule out the possibility of tampering the sample. Therefore, it is difficult to rely Ext.P4 chemical examination report for a conviction. Moreover, there are no independent witnesses supporting the seizure. Therefore, mere arrest of the accused with MO1 is not enough to conclude that the appellant has committed an offence punishable u/s.8(1) and (2) of the Abkari Act. The prosecution failed to prove the case beyond reasonable doubt that the appellant was in possession of arrack as alleged by the prosecution. On a reading of the finding, it appears that the Court below did not appreciate the evidence properly. The trial Court got an impression that the evidence of PW1 is sufficient to prove the possession of arrack. Many circumstances which ought to have been taken in favour of the accused were omitted.

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In the result, the conviction and sentence passed by the

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Criminal Appeal No.1952/2004

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trial Court u/s.8(1) and (2) of the Abkari Act are set aside.

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The appellant is acquitted and set at liberty.

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Crl.Appeal is allowed.

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P.D. RAJAN, JUDGE.

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acd

Sumathy v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sumathy v. State of Kerala

Case brief

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What did the court decide?

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