Anil Kumar vs State of Kerala

K. Ramakrishnan, J.—Accused in S.C. No. 641/2001 on the file of the Additional District and Sessions Court(Adhoc),(Fast Track-II), Pathanamthitta, is the appellant herein.

The appellant was charge-sheeted by the Excise Inspector, Konni, in O.R. No. 56/1998 of Konni Excise Range under Section 8(1) read with Section 8(2) of the Abkari Act.

The case of the prosecution in nut shell was that, on 21.10.1998 at about 05.30 p.m., the appellant was found to be in possession of 2.00 liters of arrack and glass in his hand, on the side of the road leads to Maliyekkal Kadavu near from Vettoor junction, in violation of the Provisions of the Abkari Act and thereby he had committed the offence punishable under Section 8(1) read with Section 8(2) of Abkari Act.

After investigation, final report was filed before the Judicial First Class Magistrate Court-II, Pathanamthitta, where it was taken on file as C.P. No. 30/2001 and the magistrate has committed the case to the Sessions Court, Pathanamthitta, where it was taken on file as S.C. No. 641/2001 and thereafter it was made over to the Additional District and Sessions Court (Adhoc), (Fast Track-II), Pathanamthitta, for disposal.

When the appellant appeared before the court below, after hearing the defence counsel and also the Additional Public Prosecutor of that court, the Additional Sessions Judge framed charge under Section 8(1) read with Section 8(2) of Abkari Act, against the appellant and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 5 were examined and Exts. P1 to P7 and Mos. 1 and 2 were marked on the side of the prosecution. After closure of the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence and he had further stated that, he had not committed any offence and no article was seized from his possession and he has been falsely implicated in the case. Since the evidence in the case did not warrant acquittal under Section 232 of the Code of Criminal Procedure, the Additional Sessions Judge directed the appellant to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found that the appellant was guilty under Section 8(1) read with Section 8(2) of Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for two years and also to pay a fine of 1,00,000/-, in default to undergo rigorous imprisonment for one year more. Aggrieved by the same, the present appeal has been preferred by the appellant/accused before the court below.

Heard the counsel for the appellant and Public Prosecutor.

The counsel for the appellant submitted that, the article was not seized from the possession of the appellant, but it was taken from the side of the road and as such the prosecution has failed to prove the possession of arrack with the accused. No spot sample was taken from the spot from the alleged contraband article said to have been seized from the possession of the appellant. No evidence was adduced as to from where and when it was taken to prove the fact that the representative sample reached the chemical examiners lab and the report obtained represents the representative sample of the contraband article, alleged to have been seized from the possession of the accused and in the absence of such evidence, it cannot be said that, the prosecution has proved beyond reasonable doubt that the appellant was in possession of arrack and consequential conviction entered by the court below is unsustainable in law and the appellant is entitled to get acquittal.

On the other hand, the Public Prosecutor argued that, independent witnesses had admitted their signature in Ext. P2 mahazar and the evidence of PWs 1 and 2 will go to show that, on seeing the excise party, the appellant abandoned the cannas and ran away from the place and they chased him and after catching him, they came back and seized the cannas. So the submission made by the counsel for the appellant that the arrack was not seized from the possession of the appellant is not correct. Further the evidence of PWs 1 and 5, the detecting and the investigating officer will go to show that, the sample was taken from the court and it was sent from court and the report obtained and there is nothing to disbelieve the genuineness of the sample taken and the report obtained in this regard. So according to the Public Prosecutor, the court below was perfectly justified in convicting the appellant for the offence alleged and no interference is called for.

The points that arise for consideration are:

I. Whether the court below was justified in convicting the appellant for the offence under Section 8(1) read with Section 8(2) of the Abkari Act?

II. If so, the sentence imposed is proper and legal?

Point No. I: The case of the prosecution as emerged from the prosecution witnesses was that, on 21.10.1998 at about 05.30 p.m., PW 1 the Excise Inspector along with PW 2 and others were doing patrol duty and when they reached near Vettoor Ambalam Junction, he got information that the accused was selling arrack, immediately they went to the spot, which is situated on the side of the road leading to Maliyekkel Kadavu about 25 yard south of the residence of one Narayanapillai, in Vettoor Kara and Konni Thazham Village, they saw the accused coming with MO 1 cannas in his hand and on seeing the excise party, he abandoned the cannas there and ran away from that place. They chased him and caught hold of him and thereafter came to the place and took MO 1 cannas contained two liters of some liquid. On examination of the contents of the cannas in the presence of the officials present and independent witnesses, PWs 3 and 4, PW 1 was convinced that it was arrack and he convinced the same to the officials present and the witnesses also. Thereafter he sealed the cannas and affixed label on the same containing the signature of the appellant, witnesses and himself. Thereafter he conducted body search of the appellant and found MO 2 glass kept under his waist and he had labeled the same also in the same fashion mentioned above and seized the same along with MO 1 cannas, as per Ext. P2 seizure mahasar in the presence of PWs 3 and 4 and the official witnesses. He arrested the appellant and prepared Ext. P1 arrest memo. He came to the excise office and registered Ext. P3 Crime and occurrence report as O.R. No. 56/1998 of Konni Excise Range, against the appellant. He prepared Ext. P5 property list and Ext. P4 remand application and produced the appellant and the properties before the court on the next day and the same were received by the court and the appellant was remanded to custody and later he was released on bail. Thereafter, he sent the forwarding note with request to send the sample for chemical analysis and accordingly the sample was taken from the court and it was sent for chemical analysis and Ext. P6 analysis report obtained. Ext. P7 property list of the magistrate court sent to Additional District Court will show that, the sample was taken from court. The investigation in this case was conducted by PW 5/the subsequent excise inspector, he completed the investigation and submitted final report.

PWs 3 and 4 are independent witnesses of the seizure. Though they admitted their signatures in Ext. P2 mahazar, they did not support the case of the prosecution regarding seizure of any article from the possession of the appellant. So the evidence, that is available to prove the seizure is that of the official witnesses alone. PW 1 is the detecting officer and PW 2 is the excise guard, who accompanied the detection officer on the date of incident. PW 1 had categorically stated that, on that day at about 5.30 p.m., while he was doing patrol duty, he got information from the local people that the appellant was selling arrack from the place of occurrence mentioned above and immediately he went to that spot and saw the appellant standing there carrying MO 1 cannas in his hand and on seeing the excise party, he abandoned the cannas and ran away from that place. They chased him and stopped him and thereafter took the cannas in the presence of the witnesses and found two liters of liquid in the cannas. On examination, he was satisfied that it was arrack. So he sealed the same, affixed label containing the signature of himself, appellant and witnesses. On conducting body search of the appellant, he found MO 2 glass, on which also he affixed label as mentioned above and seized the same along with MO 1 cannas as per Ext. P2 mahazar. He arrested the appellant and prepared Ext. P1 arrest memo. Thereafter he came to the excise office along with the appellant and the contraband article seized and after registering the crime and preparing the property list and remand report, produced the appellant before the court on the next day itself. The evidence of PW 1 on this aspect was corroborated by the evidence of PW 2. Though they were cross examined at length, nothing was brought out to discredit their evidence regarding on this aspect.

It is settled law that, merely because independent witness to the seizure did not support the case of the prosecution, the accused is not entitled for acquittal on that ground. It is also settled law that, there is nothing wrong for the court to base conviction of the accused regarding the seizure and arrest, relying on the evidence of official witnesses alone, if court is satisfied with that evidence. There is nothing brought out in the evidence of PWs 1 and 2 regarding these aspects. No ill motive was suggested for the excise officials to falsely implicate the appellant in a case like this as well. Though the appellant had a case that he had been falsely implicated, no independent evidence has been adduced on his side regarding this aspect. So under the circumstances, the court below was perfectly justified in coming to the conclusion that, MO 1 cannas with some liquid and MO 2 glass were seized from the possession of the appellant and he was arrested from the spot.

There is no delay in producing the article before the court. PWs 1 and 2 identified Mos. 1 and 2 arrack and glass seized as well, as it contained the label affixed by them at the time of seizure. Merely because the prosecution was able to prove that, some liquid was seized from his possession alone is not sufficient to convict him for the offence alleged, unless it is proved by the prosecution that the article seized was arrack. So they will have to prove that, the report obtained from the chemical examiner''s lab, represents the representative sample, that has been taken from the contraband article alleged to have been seized from the possession of the appellant to establish this fact. In this case no spot sample was taken. Further there is no evidence adduced on the side of the prosecution also as to who has taken the sample, when it was taken and the procedure adopted for taking sample etc, as well.

In the decision reported in (2007(1) KLT 720) Sasidharan v. State of Kerala, it has been held that:

"Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the chemical examiner with the specimen seal sent separately for tamper proof despatch, the prosecution cannot be said to have brought home the offence against the appellant. The prosecution had a duty to prove that, it was the sample taken from the contraband liquor seized from the accused, which had reached the hands of the chemical examiner in a fool proof condition".

In the same decision, it has been further held that:

"The committing magistrate has to take the contemporary proceedings evidencing drawing of sample and sending the same to chemical examiner in a tamper proof condition are recorded in a proceedings before court. Sessions Judge trying such cases also should ensure that the concerned member of the staff, who has taken the sample and despatched the same to the chemical examiner''s lab duly packed and sealed under the covering letter of the magistrate is examined before the court during trial. The Public Prosecutor in charge of the case also had duty to file an additional witness list for examining the ''thondy section clerk'' (property clerk) concerned, so as to establish the nexus between the contraband substance and the accused".

In the absence of such evidence, the court found that, the conviction entered by the court below is not sustainable and given the benefit and acquitted the accused.

Further the Division Bench of this court in (2011(3) KLT 353) Ravi v. State of Kerala, it has been held that:

"No conviction can be entered against the accused in the prosecution as the present one, unless it is proved that, the sample which was analysed in the chemical examiners laboratory, is the same sample drawn from the contraband liquor allegedly found in the possession of the accused".

In the decision reported in Gopalan v. State of Kerala 2012 KHC 812, it has been held that:

"Unless the specimen seal used for seizing the article along with the report is produced, it is not proper to convict the accused. Further the prosecution should not rely on contents without producing relevant documents and not following the procedure correctly and in such case the benefit of doubt must be given to the accused".

In the decision reported in Rajan Vs. State of Kerala, another single bench of this court has deprecated the practice of clerks taking the sample. But in such circumstances, what is the procedure to be adopted has been clearly laid down by this court in the decision reported in ( 2007(1) KLT 720) Sasidharan v. State of Kerala. But however, such a document has not been produced and no evidence has been adduced on that aspect as well. Same view has been reiterated in the decision reported in Nalinakshan Vs. State of Kerala, . So in the absence of any evidence adduced on the side of the prosecution as to from where the sample was taken, who had taken, and whether the procedure has been followed as mentioned above etc., it cannot be said that, the prosecution has proved beyond reasonable doubt that Ext. P6 chemical analysis report, which shows that the sample contained 32.99% by volume of ethyl alcohol, which is far below the standard prescribed for the arrack, so as to come to a conclusion that it was arrack, relates to the representative sample that has been taken from the contraband article alleged to have been seized from the possession of the accused, so as to come to the conclusion that, the prosecution has proved beyond reasonable doubt that, the appellant was found to be in possession of arrack, so as to convict him for the offence under Section 8(1) read with Section 8(2) of the Abkari Act. This aspect has not been considered by the court below before coming to the conclusion that the prosecution has proved beyond reasonable doubt that the appellant was found to be in possession of arrack and consequential conviction of the accused under Section 8(1) read with Section 8(2) of the Abkari Act is unsustainable in law and the same is liable to be set aside.

So the finding of the court below that the appellant has committed the offence, in view of the discussions made above, the offence under Section 8(1) read with Section 8(2) of the Abkari Act is set aside and the appellant acquitted of the charge levelled against him, giving the benefit of doubt. The point is answered accordingly.

Point No. II: In view of the finding on Point No. I. that, the appellant is entitled to get acquittal, the sentence imposed by the court below is also set aside, as it is illegal. The point is answered accordingly.

In the result, the appellant succeeds and the appeal is allowed and the order of conviction and sentence passed by the court below against the appellant in S.C. 641/2001 under Section 8(1) read with Section 8(2) of Abkari Act are hereby set aside and the appellant is acquitted of the charge levelled against him, giving him the benefit of doubt. He is set at liberty. The bail bond executed by him will stand cancelled. If the appellant has deposited any amount towards fine imposed, then the lower court is directed to refund the same to him on making an application for that purpose.

Office is directed to communicate this judgment to the concerned court at the earliest.