Appeal against conviction for transporting arrack. High Court reversed conviction, holding prosecution failed to prove proper sealing and chain of custody of seized contraband and sample, entitling accused to acquittal under benefit of doubt.
Criminal Appeal allowed; judgment reversed; accused acquitted; bail bond cancelled and accused set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
WEDNESDAY, THE 05TH DAY OF FEBRUARY 2020 / 16TH MAGHA, 1941
CRL.A.No.2316 OF 2007
AGAINST THE JUDGMENT IN SC No.765/2005 OF ADDITIONAL SESSIONS JUDGE,FAST TRACK COURT (ADHOC)-II, ALAPPUZHA.
APPELLANT/ACCUSED:
RAVEENDRAN, S/O GOPALAN, AGED 54 YEARS, KAREECHIRAVEEDU, WARD NO.6, THEKKECHIRA BHAGAM, PURAKKAD VILLAGE, PURAKKAD PANCHAYAT.
BY ADVS. SRI.C.A.CHACKO SMT.C.M.CHARISMA SRI.N.A.SHAFEEK
RESPONDENT/COMPLAINANT:
THE STATE OF EKERALA, REPRESENTING EXCISE INSPECTOR, ALAPUZHA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.
R1 BY PUBLIC PROSECUTOR
PUSHPALATHA M.K. SR PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 05.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No.2316/2007 2
JUDGMENT
Dated this the 5th day of February 2020
This appeal is directed against judgment dated 31.10.2007 of Additional Sessions Court, Fast Track-II, Alappuzha in S.C No.765 of 2005. The appellant is the accused in the case. He was found guilty for the offence under section 8 (1) of the Abkari Act (for short ' the Act) and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.1,00,000/-under section 8 (2) of the Act and in default to undergo simple imprisonment for 2 months. Aggrieved by the said judgment that the present appeal is preferred. The facts of the prosecution case in brief are to the following effect;
At 5 p.m on 31.10.2003, the accused was found transporting 3 litres of arrack in a white plastic kit along the gravel road in front of the pump house in ward No.15 of Purakkad panchayat on the eastern side of Purakkad junction. He was found by the Preventive Officer of Excise Special Squad at Alappuzha. He was conducting patrol duty there alongwith other officials. When they reached infront of the pump house, the accused was found. He was intervened and the plastic kit in his hand was examined. A Can was found kept in side.
CRL.A.No.2316/2007 3
It was opened and found to contain some liquid. The liquid was tasted and smelled and convinced it as arrack. The Can and the arrack were seized and the accused was arrested. All the members of the team of officials were made to convince that the liquid contained in the Can was arrack. Thereafter, sample was collected from the arrack found in the Can. After drawing the sample, labels containing signature of the accused, the Preventive Officer and other witnesses were affixed therein. A seizure mahazar was also prepared. Thereafter, arrest memo was prepared and forwarded to the wife of the accused. The accused, the documents prepared from the spot and the properties seized were taken to the Excise Range Officer for further action. On the subsequent day of seizure, FIR was registered and the properties alongwith Seizure Mahazar and other documents prepared from the Excise Office were forwarded to the Court. Those were received by the Court and the sample was forwarded to the Chemical Examiner's Laboratory. After obtaining the report therefrom, the final report was filed, chargesheeting the accused for the offence punishable under Section 8(2) of the Act.
CRL.A.No.2316/2007 4
Magistrate Court, Ambalapuzha. The final report was taken on file and summons was issued to the accused. On his appearance, after conducting a preliminary hearing, charge was framed for the offence punishable under Section 8(2) of the Act. The charge was read over to him and on raising the plea that he is not guilty of the charge, trial was scheduled and held.
CRL.A.No.2316/2007 5
the accused has filed this appeal.
CRL.A.No.2316/2007 6
nature of the personal seal affixed on the contraband and the samples from the spot. According to her, the forwarding note, though contended as prepared, is not available in evidence on record. It is contended by the learned counsel that since forwarding note is not produced and marked in evidence and there is no material to show the nature of the sample seal affixed, it is doubtful, whether the sample drawn from of the contraband seized from the spot itself has been forwarded to the Chemical Examiner and the report obtained pertains to that.
CRL.A.No.2316/2007 7
based on technical reasons and those are not liable to vitiate the trial. 9. In view of the rival contentions raised by the respective counsel, this Court ventured to analyse the evidence on record. Prior to adverting to the evidence on record, this Court has gone through the copy of the Notification made available. The Notification is S.R.O No.234/1967. The Notification was issued by the State Government in exercise of the powers conferred on it by Section 4 of the Act. Section 4 of the Act empowers the State Government by Notification in the Gazette to appoint certain categories of officers to act as Abkari Officers. The argument advanced was that the officer, who has detected and conducted the search and seizure of the contraband is not a competent officer. Entry No. 12 of S.R.O No.234/1967 provides that Preventive Officers of the Excise Department on duty within the State of Kerala can transact as Abkari Officers under their respective denominations for the purposes of Sections. 31, 32, 34, 35, 38, 39, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers by the provisions aforesaid. In the case on hand, the Detecting Officer, who has conducted the search, seizure and arrest of the accused are none other than a Preventive Officer attached to Excise Special Squad at
CRL.A.No.2316/2007 8
Alappuzha. Therefore, this Court is not prepared to accept the argument advanced by the learned counsel that, the Officer, who has detected and conducted the search and seizure is not a competent Abkari Officer under Section 4 of the Act. The argument advanced is discarded for the reason.
“50. Report of Abkari Officer gives jurisdiction to a competent Magistrate.-
(1) Every investigation into the offence under this Act shall be completed without unnecessary delay.”
Sub-Section (2) of Section 50 provides that;
“(2) As soon as the investigation into the offences under this Act is completed, the Abkari Officer shall forward to a Magistrate, empowered to take cognizance of the offence on a Police Report, a report in accordance with Sub-Section (2) of Section 173 of Code of Criminal Procedure, 1973 (Central Act 2 of 1974)”.
the investigation into an offence coming under it, complete the same
CRL.A.No.2316/2007 9
without unnecessary delay and file a final report as soon as the investigation is complete.
CRL.A.No.2316/2007 10
before the Court by the investigating officer. Therefore, this Court is not prepared to accept the argument advanced by the learned counsel that there was inordinate delay from the side of the prosecution in concluding the investigation and filing the final report. The argument advanced is repelled for the reason.
CRL.A.No.2316/2007 11
forthcoming in evidence, this Court is constrained to take a view that the sample seal was not affixed on the contraband and the sample taken from the spot. Forwarding note is the only document which provides for a space for affixture of sample seal impression. Only when that is provided, the court will be able to know the nature of the personal seal affixed on the contraband and sample. It is reported in Ext.P6, the certificate of Chemical Analysis that the properties were received by it with the seals intact and tallied with the sample seal provided. When the forwarding note is not forthcoming in evidence, the basis for identification by the Chemical Examiner of the sample with the contraband seized, is not known. If the prosecution has a case that the personal seal was affixed on the contraband and the sample, it is for them to furnish relevant evidence to establish the same by cogent evidence.
The fourth argument advanced was with reference to Section 38 of the Abkari Act. Section 38 provides as follows;
“ 38. Offences to be reported, etc.- Every Officer of Government, other than an Abkari Officer, shall be bound to give immediate information to an Abkari Officer, and every Abkari Officer shall be bound to give immediate information either to his immediate official superior or to an Abkari Inspector, of all breaches of any of the provisions of this Act which may come to his knowledge; and all such officers shall be bound to take all reasonable measures in
CRL.A.No.2316/2007 12
their power to prevent the commission of any such breaches which they may know or have reason to believe are about or likely to be committed”.
Abkari Officer is bound to give immediate information either to his immediate superior officer or to an Abkari Inspector, about all breaches of any of the provisions of the Act which may come to his knowledge; and all such officers shall be bound to take all reasonable measures in their power to prevent the commission of such breaches, which they may know or have reason to believe are about or likely to be committed.
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therefrom alongwith other properties were brought to the Excise Office, Alappuzha on 31.10.2003 itself. But the person with whom those have been entrusted is not spoken by him. When confronted with the identity of the person, with whom the contraband and other properties have been entrusted, the officer was unable to give a clear answer. It was on the subsequent day that the properties have been taken into custody and forwarded to the court by PW5. Therefore, there is lack of evidence regarding the person in custody of the properties after those have been brought to the Excise Office, Alappuzha on 31.10.2003. PW5 has taken the properties into custody only on 01.11.2003. Therefore, evidence is not forthcoming about the custodian of the properties from 31.10.2003 till 01.11.2003, when the properties have actually been taken into custody by PW5. For want of evidence on the nature of the personal seal affixed on the contraband and sample and regarding the custodian of the properties at Excise Office, Alappuzha, there is every reason to doubt the identification of the contraband and the sample, as put forth by the learned counsel. Therefore, there is a room for doubt to arise, whether the sample examined by the Chemical Examiner's Laboratory is the one drawn from the
CRL.A.No.2316/2007 14
contraband seized from the spot. Necessarily the benefit of doubt must go in favour of the accused. In the above circumstances, this Court is inclined to reverse the judgment under challenge.
The bail bond is canceled and the accused is set at liberty forthwith.
Sd/-
MARY JOSEPH
JUDGE
JJ
3 issues framed by the court
Whether the Preventive Officer of Excise Special Squad was competent to conduct search and seizure under the Abkari Act.
Whether the delay in filing the final report violates Section 50 of the Abkari Act.
Whether the prosecution established that the sample seized was properly sealed and forwarded to the Chemical Examiner under Sections 38 and the procedural requirements of the Act.
4 provisions across 2 enactments
Raveendran
The State of Kerala
Mary Joseph
As recorded by the court registry
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