Allowed

Omana v. State of Kerala

Kerala HC11 Feb 2020CRL.A/384/2005

Case brief

AI extract

What is this about?

In an appeal against conviction and sentence for possessing wash used for distillation without authority, the High Court quashed the trial court judgment due to material lacunae. The prosecution failed to explain the one-year delay in sending the sample to the lab, the lack of a forwarding note, and the absence of evidence regarding the affixture of the sample seal on the seized properties, defeat

What did the court decide?

The impugned judgment of the trial court is set aside, the appellant is set at liberty, and the bail bond is cancelled.

Omana Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2020)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MRS. JUSTICE MARY JOSEPH

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TUESDAY, THE 11TH DAY OF FEBRUARY 2020 / 22ND MAGHA, 1941

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CRL.A.No.384 OF 2005(C)

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AGAINST THE JUDGMENT IN S.C.NO.237/2002 DATED 14-01-2005 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (AD-HOC), FAST TRACK COURT-I, PATHANAMTHITTA

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APPELLANT/ACCUSED:

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OMANA W/O.BHASKARAN, PRAKASH BHAVANAM, PUTHENCHANTHA,, MUNDAPPALLY MURI, PERINGANADU VILLAGE, ADOOR TALUK.

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BY ADV. SRI.VINOY VARGHESE KALLUMMOOTTILL

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RESPONDENT/COMPLAINANT/STATE:

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

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BY SRI T.R.RENJITH, SR.PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.384 OF 2005 2

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JUDGMENT

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Dated this, the 11^th day of February, 2020

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The appeal on hand is directed against the judgment dated 14.01.2005 of Additional District and Sessions judge (Ad-hoc) Fast track Court I, Pathanamthitta (for short 'the trial court') in S.C.No.237 of 2002. The appeal is filed by the sole accused in the case on hand. The accused was tried in the case, found guilty of the offence under Section 55 (g) of the Abakari Act (for short

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‘the Act’) and convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/- and in default to undergo simple imprisonment for two years. Aggrieved thereby the accused has preferred the appeal. For the sake of convenience the parties are referred to hereinafter as the accused and the prosecution.

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It is contended by Sri.Vinoy Varghese Kallummoottil, the learned counsel on behalf of the accused that the trial court is highly erred in appreciating the evidence on record and to arrive at a finding of guilt against the accused. According to him, even if the entire evidence let in by the prosecution are considered, a finding of guilt of the accused is improbable to be

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arrived at. According to him, none of the witnesses examined by the prosecution have a say about preparation of a forwarding note in the case on hand. Such a document is also not forthcoming in evidence. It is contended by the learned counsel in the context that there is absolutely nothing on record to establish that sample seal impression was made available to the Chemical Examiner for identifying the sample seized by it for analysis. The learned counsel has also pointed out that the sample of the contraband reached the Chemical Examiner’s Laboratory at Thiruvananthapuram, delayed by a day. The counsel has invited the attention of this Court to Ext.P8, the Certificate of Chemical Examination to contend that the sample forwarded to it on 02.05.2000 was received by the Laboratory on 03.05.2000. According to the learned counsel, immediately after the seizure, the properties were produced before the office of the excise officials on 05.03.1999 and was forwarded therefrom to the court on that day itself.

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However, the reason for the late forwarding of the sample to the Laboratory on 02.05.2000 after receiving the same by the court on 05.03.1999 was not stated by any of the prosecution witnesses. Explanation for non-reach of the sample forwarded from the court at the laboratory on 02.05.2000 itself is

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CRL.A.No.384 OF 2005 4

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also not forthcoming. As evidenced from the Certificate of Chemical Examination the sample reached the laboratory only on 03.05.2000. The prosecution failed to examine the Excise Guard who has taken the sample from the court to the Laboratory. According to the learned counsel for want of cogent explanation for the delay, there is every reason to view the prosecution case with suspicion. According to the learned counsel, in a circumstance of total want of evidence regarding affixture of sample seal on the properties seized, that it was recorded by the Chemical Examiner in Ext.P8 that the seals in the sample forwarded were intact and tallied with the sample seal provided. According to him, the accused is entitled to obtain the benefit of such suspicion.

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It is discerned from the above recorded factum that the sample was identified by the Chemical Examiner as one drawn from the contraband seized from the spot, on the basis of comparison of the sample seal found affixed on it with the sample seal impression provided to it. Forwarding note is not evidenced as prepared and forwarded to the court and in that context, there is no scope for the Chemical Examiner to identify the sample as one drawn from the contraband seized on 05.03.1999. The context undoubtedly creates some suspicion about the

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identification of the sample by the Chemical Examiner.

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In the backdrop of the arguments advanced, it is

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apposite to have an idea about the case of the prosecution and therefore is summarised herein below :

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On 05.03.1999 at 11.30 am, the Preventive Officers and party of Adoor Excise Range Office while were on patrol duty through Panchayath road at Puthenchantha, found the accused walking though the side of the road carrying a Can. On watching the excise party, though she attempted to retreat, she was caught and the Can was examined. It was of 10 litre capacity and was found to contain Wash used for distillation of arrack in full. After making her convince that possessing of the same without authority is an offence, she was arrested therefrom. Sample was drawn from the contraband. A seizure was also prepared from the

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spot. The accused alongwith the mahazar prepared and the properties seized from the spot were produced before the Excise Range Inspector, Adoor. Crime was registered against the accused and investigation was pursued with. The accused and the properties alongwith copies of the relevant documents prepared were forwarded to the court. Those were received by the court on the day itself. Concluding the investigation, a final report was laid before the court. Summons was served on the

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accused and on her appearance, a preliminary hearing was held. Charge was framed against the accused for the offence punishable under Section 55 (g) of the Act. The charge was read over and explained to the accused. She pleaded not guilty and faced trial.

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On the side of the prosecution, PW1 to PW6 were examined and Exts.P1 to P8 and MO I were marked. The accused did not adduce any evidence. On appreciation of the evidence on record as a whole, the trial court found the case of the prosecution proved beyond reasonable doubt and accordingly convicted and sentenced her.

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Among the witnesses examined, PW3 and PW4 were independent witnesses and they turned hostile. PW1 and PW2 were the official witnesses who have corroborated in their versions regarding detection of the offence, search and seizure of the contraband, sampling of the same and arrest of the accused. PW5 was the officer who registered the crime and commenced the investigation process. PW6, the successor of PW5 had concluded the investigation and laid the final report before the trial court. On a scrutiny of the oral evidence tendered by PW1 and PW2 corroboration is found on material aspects of the prosecution case. Challenge was also not raised by the counsel for the

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accused against their credibility. The judgment was challenged mainly for the delayed production of the sample before the Chemical Examiner’s Laboratory. Ext.P8 establishes that the sample of the contraband forwarded to the Chemical Examiner’s Laboratory from the court on 02.05.2000 reached there only on 03.05.2000. It is evidenced from Ext.P8 that the sample was forwarded from the court to the Laboratory through an Excise Guard. The excise office is at Adoor and the Chemical Examiner’s Laboratory is at Thiruvananthapuram. Therefore, there is every reason for the sample to reach the Laboratory on that day itself. The Excise Guard who has transported the sample to the laboratory was not examined. Therefore, there is total want of explanation for the delay in production of the sample at the Laboratory.

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It is disclosed from the evidence on record that the sample was produced before the court on 05.03.1999, the date of seizure itself, but was forwarded to the Laboratory only on 02.05.2000, i.e. after about one year. Explanation of any nature is also not forthcoming either from PW5 or PW6 for that inordinate delay.

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From a scrutiny of the evidence on record this Court was occasioned to see that a forwarding note is not produced and

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marked. It is recorded in Ext.P8 :

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“The seal on the bottle was intact and found tallied with the sample seal provided”.

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In the absence of a forwarding note, wherefrom the sample seal was obtained by the Chemical Examiner for identification purpose is unknown. From the seizure mahazar prepared from the spot and marked in evidence as Ext.P1, description is not made about affixture of sample seal on the properties seized from the spot and the sample drawn therefrom. Sample seal impression is also not found affixed in Ext.P1. Forwarding note is the only document which provides for a space for affixture of sample seal. When the forwarding note is not available, this Court is in darkness about the nature of the sample seal if any affixed by the detecting officer on the properties seized from the spot. In the case on hand, there is total want of evidence regarding affixture of sample seal on the properties from the spot. Therefore, what was the sample seal relied on by the Chemical Examiner to identify the sample as one drawn from the contraband seized is not known. The identification turns doubtful in the said circumstances. The prosecution witnesses were not made to clarify those aspects and that undoubtedly is a material lacuna in the case of prosecution liable to vitiate it.

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Apart from all the above, this Court has also noticed that a final report was prepared only on 28.05.2001. As evidenced, the sample for chemical analysis was received by the Chemical Examiner's Laboratory on 03.05.2000. After forwarding the sample to the laboratory, it look more than a year for the investigation to be concluded and the final report to be laid. Explanation for the delay is not forthcoming. None of the official witnesses examined before the court has stated anything about the inordinate delay occurred in the investigation process, preparation of the final report and forwarding of the same to the court.

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In the above circumstances, Section 50 of the Act is

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apposite extraction hereunder.

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“ 50. Report of Abkari Officer gives jurisdiction to a competent Magistrate:-

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(1) Every investigation into the offence under this Act shall be completed without necessary delay.

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(2) As soon as investigation into the offences under this Act is completed, the Abkari Officer shall forward 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).”

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It is provided that the investigation shall be concluded by Abkari Officers without inordinate delay and on conclusion, a final report shall forthwith be forwarded to the court. For want of any explanation for the inordinate delay from the official

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witnesses in the above regard, this Court is inclined to hold that

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the prosecution case is defeated.

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In the result, the appeal stands allowed. The judgment under challenge is set aside. The appellant is set at liberty after cancellation of bail bond executed by her.

Sd/-

MARY JOSEPH

JUDGE

NAB

Omana v. State of Kerala

Case brief

What is this about?

What did the court decide?

Omana v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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