Bhaskaran vs State Of Kerala

Johnson John, J

The accused in S.C. No. 313 of 2006 on the file of the Additional Sessions Judge, Adhoc-I, Manjeri filed this appeal challenging the conviction and sentence imposed on him for the offence punishable under Section 8(2) of the kerala Abkari Act.

As per the impugned judgment, the accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months for the offence under Section 8(2) of the Kerala Abkari Act.

The prosecution case is that the accused was found in possession of 8 litres of arrack in a 10 litre can on 24.06.2004 at about 9 p.m. on the pathway near the house of Eyyakunnumel Chathan at Valavattur by the Excise Preventive Officer and party. After investigation, final report was filed before Judicial First Class Magistrate Malappuram and the same was taken on file as C.P No. 75 of 2005. After committal and appearance of the accused before the trial court, charge was framed and when the accused pleaded not guilty to the charge, the prosecution examined PWs 1 to 7 and marked Exhibits P1 to P8 and MOs 1 and 2. No evidence was adduced from the side of the accused. After trial and hearing both sides, the trial court found the accused guilty of the offence under Section 8(2) of the Kerala Abkari Act and imposed the sentence as aforesaid.

Heard Sri. Sidharth Karun Pisharady, the learned counsel representing the learned counsel for the appellant on record and Sri. Vipin Naryan, the learned Senior Public Prosecutor.

The learned counsel for the appellant pointed out that the prosecution has not examined the Preventive Officer who detected the case and PW6, the independent witness, examined to prove the occurrence turned hostile to the prosecution. It is also pointed out that nothing is stated Exhibit P5 mahazar regarding the nature of the seal affixed on the contraband alleged to be recovered and the sample bottles and the specimen impression of the seal used is not affixed in Exhibit P1 property list or produced along with the properties so as to enable proper comparison to ensure tamper free collection and production of the contraband and sample before the court and the Chemical Examiner’s Laboratory.

PW1 was the Junior Superintendent of Judicial First Class Magistrate, Malappuram who received the properties as per Exhibit P1, property list, in the court on 25.06.2004. The evidence of PW1 only shows that he verified the properties with the property list and he has no case that he had opportunity to compare the seal affixed in the properties with the specimen seal impression.

PW2 was the Excise Range Inspector of Malappuram on 24.06.2004 and his evidence shows that he registered Exhibit P3, occurrence report, on 25.06.2004. In cross examination, PW2 stated that the accused and properties were produced before him only on 25.06.2004. According to PW2, he prepared Exhibit P1, property list, and Exhibit P2, forwarding note. However, he admitted in cross examination that there was no request in Exhibit P2, forwarding note, to examine whether the sample is arrack or some other liquor.

PW3 is the Excise Guard who produced the accused and properties before the Judicial First Class Magistrate, Malappuram on 25.06.2004. PW4 is the Excise Guard who produced the sample in the Chemical Examiner’s Laboratory on 26.06.2004. PW7 is the Excise Circle Inspector who conducted the investigation and filed the final report. PW6, the independent witness, examined from the side of the prosecution turned hostile to the prosecution and deposed that he has not witnessed the occurrence alleged in this case.

PW5 deposed that while working as Preventive Officer in the Anti Narcotic Special Squad, Malappuram, he also accompanied Preventive Officer, Achan Mathew, for patrol duty on 24.06.2004. Even though PW5 deposed regarding the occurrence as per the prosecution case, he has no case that he examined the liquid in the can by tasting and smelling at the time of occurrence and what he deposed is that CW1 examined the liquid in the can by tasting and smelling and CW1 was satisfied that the same is arrack. Even though PW5 deposed that CW1 used his personal seal for sealing the sample bottle and the can containing arrack, he has not deposed anything regarding the nature of the seal used by CW1. In cross examination, PW5 admitted that he has not stated anything to the Investigating Officer regarding the nature of the seal used.

In this case, the prosecution has not examined the Preventive Officer, Achan Mathew, who detected this case. The impugned judgment shows that the Public Prosecutor has given up CW1 for the reason that he was laid up with illness. It is well settled that the officer who had drawn the sample had to give evidence as to the nature of the seal affixed on the bottle containing the sample and also regarding the nature of the seal used to seal the can containing the remaining portion of the contraband seized.

In Sasidharan v. State of Kerala [2007(1) KLT 720], this Court held that the prosecution has 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 and unless the link evidence of actual sampling 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 appellants.

In Kishan Chand v. State of Haryana [2013 (1) KLT 634 (SC)] the Honourable Supreme Court held that it is settled canon of interpretation that penal provisions, particularly with harsher punishments ought to be construed strictly and the doctrine of substantial compliance cannot be pressed into service in such situation.

The learned counsel for the appellant pointed out that Exhibit P8 report of the Chemical Examiner only shows that the sample of liquid contained 35.91% by volume of ethyl alcohol and there is nothing in Exhibit P8 to indicate that the sample tested in the Chemical Examiner’s laboratory is arrack. As noticed earlier, the evidence of PW2 in cross examination clearly shows that the accused and contraband items were produced before him only in the morning on 25.06.2004

It is pertinent to note that the alleged occurrence was at 9 p.m. on 24.06.2004. In re-examination PW2 stated that the accused and properties were produced in his office at 11.55 p.m. on 24.06.2004 and he was not there in the office at that time. The prosecution has not examined any witness to prove who was in possession of the properties till the same was handed over to PW2 in the morning on 25.06.2004. A perusal of Exhibit P1 property list shows that the specimen impression of the seal used is not affixed in Exhibit P1 property list and there is nothing in evidence to show that the specimen impression of the seal was made available to PW1 for the purpose of comparison at the time of receiving the properties in the court.

In Bhaskaran v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the court so as to enable the court to satisfy the genuineness of the sample produced in the court.

In Rajamma v. State of Kerala [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the bottle, no evidentiary value can be attached to the Chemical Analysis report.

The Honourable Supreme Court in Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC 3569], held that the failure of the prosecution in the case to relate the seized sample with that seized from the appellant, makes the case no different from failure to produce the seized sample itself and the mere production of the laboratory report cannot be conclusive proof by itself.

In the instant case, the prosecution has not examined the Preventive Officer who detected the case. The detecting officer has not produced the specimen impression of the seal at the time of production of properties before the court and the genuineness of the contraband and sample produced before the court is under challenge and therefore, on a careful re-appreciation of the entire evidence, I find that the learned Sessions judge has disregarded these vital aspects while recording the impugned conviction and sentence and therefore, the impugned judgment is liable to be set aside.

In the result, this appeal is allowed and the conviction and sentence imposed by the trial court against the appellant/accused is set aside and he is acquitted of the offence punishable under Section 8(2) of the Kerala Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled and he is set at liberty forthwith.