Damodarakuruppu vs State Of Kerala

Johnson John, J

The accused in S.C. No. 204 of 2009 on the file of the Additional District and Sessions Judge, Adhoc No.II, Manjeri filed this appeal challenging the conviction and sentence imposed on him for the offence under Section 55(i) of the Kerala Abkari Act.

The prosecution case is that on 19.04.2008, at about 4.30 p.m., the accused was found selling liquor in his shop bearing No.V/216 of Vallikkunnu Panchayat and 4.500 litres of Indian Made Foreign Liquor was recovered from his shop and he is thereby, alleged to have committed the offence as aforesaid.

On appearance of the accused before the trial court and when he pleaded not guilty to the charge, PWs 1 to 6 were examined and Exhibits P1 to P11 and MOs 1 to 10 were marked from the side of the prosecution. No evidence adduced from the side of the accused.

After considering the evidence on record and hearing both sides, the trial court found the accused guilty of the offence under Section 55(i) of the Kerala Abkari Act and he is sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-and in default of payment of fine, to undergo simple imprisonment for six months for the offence under Section 55(i) of the Kerala Abkari Act, as per the impugned judgment dated 06.08.2009.

Heard Sri. P. Venugopal, the learned counsel representing the learned counsel for the appellant on record and Sri. Sanal P. Raj, the learned Public Prosecutor and perused the records.

The learned counsel for the appellant argued that the prosecution has not explained the absence of the specimen seal impression in the property list and the delay in producing the properties before the court and there is no satisfactory evidence to prove that there was tamper proof despatch of the sample and in the absence of satisfactory evidence to show that the sample taken from the contraband seized at the time of occurrence was the sample which reached the hands of the chemical examiner, the accused is entitled for the benefit of reasonable doubt.

A perusal of the evidence of PW1, Excise Inspector who detected the offence, shows that even though he deposed regarding the occurrence in tune with the prosecution case, his evidence in cross examination shows that when the properties were produced before Judicial First Class Magistrate Court-II, Perinthalmanna on 20.04.2008, the same was returned for production before the court on the next working day and subsequently, the properties were produced only on 26.04.2008 before the Judicial First Class Magistrate Court, Parappanangadi.

A perusal of Exhibit P7, property list, would show that the specimen impression of the seal used by PW1 is not affixed in Exhibit P7. The learned counsel for the appellant pointed out that PW1 has no case that he was in possession of the properties from 20.04.2008 to 26.04.2008 and that 21.04.2008 was a working day and PW1 has not given any explanation for not producing the properties in the office of the Judicial First Class Magistrate Court, Perinthalmanna on 21.04.2008 and the explanation of PW1 that the properties were received in the office of the Judicial First Class Magistrate Court, Parappanangadi only after the receipt of the records from the Judicial First Class Magistrate Court, Perinthalmanna cannot be accepted, in as much as the direction of the Judicial First Class Magistrate, Perinthalmanna on 20.04.2008 is to produce the properties before court on the next working day.

The learned counsel for the appellant pointed out that there is no evidence in this case as to how and who produced the properties in the Judicial First Class Magistrate Court, Parappanangadi on 26.04.2008 and the prosecution has not examined the property clerks of Judicial First Class Magistrate Court, Perinthalmanna and Parappanangadi to prove that the seal affixed on the properties were verified with the specimen seal impression of the seal used by PW1 at the time of receiving the properties in the court.

As noticed earlier, the specimen impression of the seal used by PW1 is not affixed in Exhibit P7 property list. A perusal of Exhibit P8, copy of the forwarding note, shows that the same is filed in the court on 20.04.2008 and the space meant for writing the name of the excise guard with whom sample was sent is not filled and the learned counsel for the appellant cited the decision of this Court in Kumaran P. v. State of Kerala and another [2016 (5) KHC 632) to show that in such a situation, the prosecution has to examine the thondi clerk of the court or the excise guard concerned to prove tamper proof despatch of the sample to the laboratory.

Exhibit P8 further shows that the learned Magistrate has not recorded the date on which he countersigned the forwarding note. A perusal of Exhibit P11, chemical analysis report, shows that the sample reached the Chemical Examiner’s Laboratory only on 6.5.2008. The learned counsel for the appellant also cited the decision of this Court in Girish v. State of Kerala [2023 7 KHC 435] to show that absence of impression of specimen seal in the property list and non disclosure of name of the excise guard in the forwarding note and the delay in producing the sample before the Chemical Examiner’s Laboratory are circumstances to doubt the identity of the sample drawn and the sample sent for chemical analysis.

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 manner, 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 accused.

In the above circumstances, it is found that the prosecution has not succeeded in proving the case against the accused beyond reasonable doubt and therefore, the conviction and sentence imposed by the trial court are liable to be set aside.

In the result, this appeal is allowed and the conviction and sentence imposed by the trial court against the accused/appellant is set aside and he is acquitted of the offence under Section under Section 55(i) of the Kerala Abkari Act. The bail bond executed by the accused/appellant shall stand cancelled and he is set at liberty forthwith.