Anil Kumar vs State of Kerala

K. Ramakrishnan, J.—The accused in S.C. No. 1222/2002 on the file of the Third Additional Sessions Court, Kollam is the appellant herein.

The appellant was charge sheeted by the Excise Inspector, Karunagappally excise range in Crime No. 98/1999 of that excise range under Sections 55(a), 8(1) and (2) of the Abkari Act.

The case of the prosecution in nutshell was that on 02.07.1999, at about 11.30 a.m., the accused was found to be in possession of 8 litres of arrack and transiting the same from west to east through the panchayat road starting from Thattakkad junction in Thazhava village in violation of the provisions of the Abkari Act and thereby he had committed the offence punishable under Sections 55(a), 8(1) and (2) of the Abkari Act.

After investigation, final report was filed before the Judicial First Class Magistrate Court, Karunagappally where it was taken on file as C.P. No. 187/2001. Later the case was committed to the Sessions Court, Kollam by the Magistrate and the same was taken on file as S.C. No. 1222/2002 by the Sessions Judge and after committal, it was made over to the Third Additional Sessions Court, Kollam for disposal.

When the appellant appeared before court below, after hearing the counsel for the appellant and the learned Additional Public Prosecutor, the Additional Sessions Judge framed charge under Sections 8(1) and (2) of the Abkari Act 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 7 were examined and Exts. P1 to P6 and MO1 were marked on the side of the prosecution. After the closure of the prosecution evidence, the appellant was questioned under Section 313 of the Code of Criminal Procedure (hereinafter referred to as ''the Code'') and he denied all the incriminating circumstances brought against him in the prosecution evidence. He further stated that he had not committed any offence and he has been falsely implicated in the crime. Since the Additional Sessions Judge found that it is not a fit case of acquittal under Section 232 of the Code, the appellant was called upon to enter on his defence, but no defence evidence was adduced on his side. After considering the evidence on record, the court below found the appellant guilty under Sections 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for three years and also to pay a fine of Rs. One lakh, in default, to undergo rigorous imprisonment for nine months. Aggrieved by the same, the present appeal has been filed by the appellant/accused before the court below.

Heard the counsel for the appellant and the Public Prosecutor.

The counsel for the appellant submitted that there was no proper identification of the appellant as the person, who ran away from the place after abandoning the cannas as claimed by the prosecution. They have no case that they have got prior acquaintance with the appellant. They have alleged to have seen him for the first time on the date of the alleged occurrence. Further, there is no description of the seal or the label said to have been affixed on the cannas were mentioned in Ext. P1. It is not mentioned in Ext. P1 that from whom they got the information that the person who ran away from the place was the appellant so as to connect with the contraband article. No spot sample was taken and so the prosecution has also failed to prove that the chemical analysis report Ext. P6 relates to the representative sample said to have been taken from the contraband article said to have been seized from the possession of the appellant. So, the prosecution has failed to prove beyond reasonable doubt that the appellant was found to be in possession of arrack so as to convict him for the offence alleged and the lower court was not justified in convicting the appellant for the said offence and he prayed for allowing the appeal.

On the other hand, the Public Prosecutor submitted that the evidence of PWs 1 and 2 will go to show that they have got opportunity to see the appellant and the evidence of PW1 will go to show that he had later identified him from the office after his arrest. There was no delay in producing the article in the court. So, under the circumstances, the court below was perfectly justified in convicting the appellant for the offence alleged.

The points that arise for consideration are: (1) whether the court below was justified in convicting the appellant for the offence under Sections 55(a), 8(1) and (2) of the Abkari Act. (2) If so, the sentence imposed is proper and legal.

The case of the prosecution as emerged from the prosecution witnesses was as follows:

On 02.7.1999, at about 11.30 a.m., while PW1 along with PW2 and other excise officials were doing patrol duty, when they reached the place of occurrence, they saw a person from a distance of 50 metres coming in front of them carrying a cannas, which was later identified as MO1, and on seeing the excise party, he abandoned the cannas and ran away from the place and though they chased him, they failed in their attempt to catch hold of him. Thereafter, they came back, examined MO1 cannas and found that it contained full of liquid and on examination in the presence of Pws 3 and 4, they were satisfied that it was arrack. Thereafter, PW1 sealed the cannas and seized the same as per Ext. P1 mahazer in the presence of the witnesses and came to the excise range office and handed over the same to PW5, the Excise Officer, and on the basis of Ext. P1, he registered Ext. P5 occurrence report as Crime No. 98/1999 under Section 55(a) of the Abkkari Act against the appellant, whose identity was disclosed in Ext. P1 on the basis of the information collected by PW1 from the spot. Thereafter, PW6 arrested the appellant on 4.2.2000 and gave Ext. P1 arrest intimation to his friend and produced him before the court along with Ext. P4 remand report. The investigation was conducted by PW7. PW5 sent articles to the court along with property list and thereafter on the basis of the request given by him, the sample was sent for analysis and Ext. P7 Chemical Analysis Report was obtained, which shows that the sample contained 52.85% by volume of ethyle alcohol. PW7 questioned the witnesses and recorded their statement. He completed the investigation and submitted final report against the appellant.

Pws 3 and 4 are the independent witnesses examined on the side of the prosecution to prove seizure of the article and also to identify the appellant as the person, who ran away from the place. But, they did not support the case of the prosecution not only on the question of seizure, but also seeing the appellant running away from the place and also denied their signature in Ext. P1 mahazer. So their evidence is not helpful to prove the case of the prosecution.

The only evidence available to prove the seizure and identity of the accused was that of Pws 1 and 2. PW1 is the detecting officer. He had deposed that on 2.7.1999, at about 11.30 a.m., while he along with PW2 and other officials were on patrol duty and when they reached the place of occurrence, they saw a person coming in front of them from a distance of 50 metres with a cannas in his hand and on seeing the excise party, he abandoned the cannas and ran away from the place. Though they chased him, they could not arrest him. Thereafter, they came to the place and examined the cannas and satisfied that the contents in the cannas was arrack. Thereafter, he sealed the same and seized the same as per Ext. P1 mahazer. The evidence of PW1 to that extent was corroborated by the evidence of PW2. So their evidence can be believed to the extent that one person had abandoned the cannas and ran away from the place and on examination, according to them, they satisfied that it was arrack.

It was admitted by Pws 1 and 2 that they have no prior acquaintance with the appellant and in Ext. P1 it was not mentioned that they have got prior acquaintance with the appellant but they came to know about his identity from the persons, who gathered there. But Pws 3 and 4 did not support the case of the prosecution. No other witnesses have been examined to prove that the person, who ran away from the place was the appellant. No identification mark of the person, who ran away from the place was noted in the mahazer as well. Though PW1 had a case that after the arrest he had identified the appellant from the excise office, neither the arresting officer nor the investigating officer had a case that after the arrest, he was shown to the officials and they have identified him. So, under the circumstances, the evidence given by Pws 1 and 2 regarding the identity of the appellant as the person, who ran away from the place, so as to connect him with the commission of the crime is not sufficient to fix criminality on the appellant on the basis of the identification made by them. So that benefit must be given to the appellant. The finding of the court below that the evidence of Pws 1 and 2 is sufficient to prove the identify of the appellant as the person who ran away from the place is unsustainable in law and the same is liable to be set aside.

Even assuming that the prosecution was able to prove the identify of the accused, which this Court find that not sufficient to prove the identity, they must further prove, the sample that reached the lab and the report that received from the relatives, that the representative sample taken from the contraband article alleged to have been seized from the possession of the appellant. That can be possible only, if the sample was taken from the spot from the contraband article in the presence of the appellant and the witnesses or from the court after preparing proper proceedings by the court. But that was not in this case.

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

"Without 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 a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. The prosecution had a duty to prove that it was the sample taken from he 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 observed that:

Committing Magistrates have to take care that contemporary proceedings evidencing the drawing of sample and sending the same to the Chemical Examiner in a tamper-proof condition are recorded in the proceedings before court. Sessions Judges trying such cases also should ensure that the concerned member of the staff, who had drawn the sample and despatched the same to the Chemical Examiner duly packed and sealed under the covering letter of the Magistrate, is examined before court during trial. The Public Prosecutor in charge of the case also had a 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".

So, in the absence of such evidence as mentioned above, it cannot be said that the prosecution has proved beyond reasonable doubt that the accused was found to be in possession of arrack and he had committed the offence punishable under Sections 55(a), 8(1) and (2) of the Abkari Act as found by the court below. So the finding of the court below that the prosecution has proved beyond reasonable doubt that the accused had committed the offence punishable under Section 55(a) of the Abkari Act (it ought to have been under Sections 8(1) and (2) of the Abkari Act) and consequential conviction of the appellant for the said offence by the learned Additional Sessions Judge is unsustainable in law and the same is set aside and the appellant is acquitted of the charge levelled against him giving him the benefit of doubt. Point No. 1 is answered accordingly.

Point No. 2: In view of the finding on point No. 1, sentence imposed by the court below is also illegal and the same is also set aside. Point No. 2 is answered accordingly.

In the result, the appellant succeeds and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellant under Sections 8(1) and (2) of the Abkari Act (wrongly shown as Section 55(a) of the Abkari Act) in S.C. No. 1222/2002 on the file of the Third Additional Sessions Judge, Kollam are 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 had remitted any amount towards the fine imposed as directed by this Court, the lower court is directed to refund the amount to the appellant on making such an application before that court for that purpose.

Office is directed to communicate a copy of this judgment along with back records to the concerned court immediately.