Jayachandran @ Babu vs State Of Kerala

G.Girish, J

The revision petitioner is the convict in S.C.No.758/2007 of the Sessions Court, Palakkad, tried by the Assistant Sessions Judge, Palakkad. He was prosecuted for the commission of offence under Section 8(1) and (2) of the Abkari Act. As per the judgment dated 23.02.2011, the learned Assistant Sessions Judge, Palakkad sentenced the petitioner to simple imprisonment for six months and fine Rs.1,00,000/- with a default clause of simple imprisonment for six months under Section 8(2) read with Section 8(1) of the Abkari Act. Though the petitioner had filed appeal before the Sessions Court, Palakkad as Crl.A.No.144/2011, the Appellate Court confirmed the conviction and modified the sentence to simple imprisonment for four months, retaining the fine as such. The present revision petition is directed against the above concurrent findings of conviction of the Trial Court and the Appellate Court, and the modified sentence imposed by the Sessions Court, Palakkad in Crl.A.No.144/2011.

The case against the petitioner is that, on 05.07.2006 at about 6:00 p.m, he was found to have been in possession of five litres of arrack in a black jerry can of 5 litres capacity. The Excise Inspector of Parli Range and his team are said to have arrested the petitioner with the contraband arrack and collected samples on the spot. The petitioner was produced before the Magistrate concerned and remanded to judicial custody. The contraband items seized from the petitioner, as well as the sample collected on the spot, are said to have been forwarded to the Magistrate concerned. From the Court of the Judicial First Class Magistrate, the aforesaid sample is said to have been sent for chemical examination to the Chemical Examiner’s Laboratory. After the completion of the investigation, the Excise Inspector of Parli Excise Range laid the final report before the Magistrate concerned in respect of the offence under Section 8(1) and (2) of the Abkari Act.

Upon commitment and make over of the case, the learned Assistant Sessions Judge, Palakkad proceeded with the trial by framing charges under Section 8(1) and (2) of the Abkari Act. Four witnesses were examined from the part of the prosecution as PW1 to PW4 and 8 documents were marked as Exts.P1 to P8. One material object was identified as MO1. After the close of the prosecution case, the petitioner was questioned by the learned Assistant Sessions Judge, Palakkad under Section 313(1)(b) of the Cr.P.C The petitioner totally denied the incriminating circumstances put to him in the above examination. Finding that there is no scope for an acquittal under section 232 Cr.P.C., the learned Assistant Sessions Judge afforded opportunity to the petitioner to adduce defence evidence. However, the petitioner did not adduce any evidence. After the evaluation of the aforesaid evidence and hearing both sides, the learned Assistant Sessions Judge arrived at the finding that the petitioner committed offence punishable under Section 8(1) and (2) of the Abkari Act. Accordingly, the petitioner was awarded the sentence as stated hereinabove. In the appeal filed before the Sessions Court, Palakkad as Crl.A.No.144/2011, the learned III Additional Sessions Judge, Palakkad who heard that appeal, found that there is absolutely no reason to interfere with the conviction of the petitioner. However, the learned Additional Sessions Judge modified the sentence imposed upon the petitioner to simple imprisonment for four months retaining the fine of Rs.1,00,000/- as such. The default clause of simple imprisonment for six months awarded by the Trial Court was modified to simple imprisonment for three months. It is the aforesaid judgment of the III Additional Sessions Judge, Palakkad in Crl.A.No.144/2011 which is under challenge in this revision petition.

Heard the learned counsel for the petitioner and the learned Public Prosecutor representing the State of Kerala.

A perusal of the judgment of the Trial Court and that of the Appellate Court would reveal that the above courts placed heavy reliance upon the evidence tendered by the Excise Officers who were examined as PW1, PW2 and PW4. Among the above witnesses, PW1 was the Detecting Officer and PW2 was the Assistant Excise Inspector who assisted him. PW4 was the Excise Inspector who completed the investigation and laid the final report before the Magistrate concerned. The Trial Court as well as the Appellate Court found that the evidence adduced by the prosecution in respect of the seizure of the contraband item from the accused, the collection of samples, and the analysis of the aforesaid sample leading to the finding that the contraband item contained Ethyl Alcohol are reliable. However, a close scrutiny of the relevant records as well as the evidence of PW1, PW2 and PW4 would reveal that the procedures adopted in connection with the collection of samples and the despatch of the samples to the Chemical Examiner's Laboratory were fraught with so many discrepancies rendering the whole process unbelievable. The seizure mahazar marked as Ext.P2 does not contain the detailed description of the seal affixed by the Detecting Officer in the contraband item and the sample bottle. The modalities followed by the Detecting Officer for the collection of samples are not narrated in Ext.P2 mahazar. It is not even stated in the mahazar that the sample was collected in a clean and moisture free bottle. It is not clear from Ext.P2 mahazar as to whether the Detecting Officer had covered the lid portion of the sample bottle with cloth and thereafter fastened the same with twine and affixed the seal in wax at that portion. Thus, it is not possible to discern from Ext.P2 mahazar as to whether the Detecting Officer had followed foolproof and fair procedures while the collection of samples.

It is also pertinent to note that there is absolutely no evidence adduced by the prosecution to show that the sample collected from the scene of crime was forwarded to the Magistrate in a tamper proof condition, and that it reached the Court of Judicial First Class Magistrate concerned in the same condition as it was at the time of collection of samples. Though the property list marked as Ext.P4 contains the indication that the black jerry can with 4.7 litres of arrack forwarded by the Excise Inspector to the court was sealed and labelled, there is absolutely no indication in the said document as to whether the sample bottle which is stated to be a bottle of 375 ml capacity containing 300 ml of arrack, was sealed and labelled. Apart from a mere endorsement in Ext.P4 that the above items sent by the Excise Inspector were received and entered as item No.99/2006, there is absolutely nothing stated in Ext.P4 by the staff of the Judicial First Class Magistrate concerned as to whether the seal and label of the items received from the Investigating Agency were verified and found to be intact.

As regards the despatch of the sample bottle from the Court of Judicial First Class Magistrate-III, Palakkad to the Chemical Examiner's Laboratory, it is pertinent to note that the specimen seal impression seen in Ext.P5 forwarding note and the specimen seal impression seen in the covering letter of the learned Magistrate, attached to the said document, are totally different. Thus, it is not clear as to whether the sample bottle was forwarded to the Chemical Examiner's Laboratory with the specimen seal impression shown in the covering letter of the learned Magistrate, or with the specimen seal impression seen in the space beneath column No.9 of Ext.P5 forwarding note. In the above circumstances, the indication in Ext.P8 chemical examiner’s report that the seals on the packet and the bottle were intact, is of no consequence at all. Thus, it has to be stated that the prosecution had failed to establish that the sample bottle was sent from the Court of Judicial First Class Magistrate-III, Palakkad to the Chemical Examiner's Laboratory in a tamper proof condition in the same state as it was received from the investigating agency. It has been held by this Court in Sasidharan v. State of Kerala [2007 (1) KLT 720] that the prosecution has to establish that the same sample collected by the Detecting Officer from the contraband item reached the Chemical examiner’s laboratory in a tamper proof condition, and that the procedures adopted were in such a way that the despatch of the sample item was in a foolproof manner. In Rajamma v. State of Kerala [2014 KHC 2548] it has been held that the prosecution has to prove that the specimen impression of the seal stated to have been affixed on the bottle containing the sample, was provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, was tallying with the seal affixed on the sample and in the absence of such link evidence, no sanctity can be attributed to the Chemical Examiner’s report.

Going by the evidence in this case, it is not possible to say that the sample was collected in a fair and foolproof manner and forwarded to the Chemical Examiner’s Laboratory, ruling out the possibility of tampering and manipulations. That being so, it has to be held that the Trial Court as well as the Appellate Court went wrong in relying on the evidence adduced by PW1, PW2 and PW4 on the basis of Exts.P1 to P8.

It is also pertinent to note that the judgment of the Trial Court does not contain any indication that MO1 jerry can contained the seal impression said to have been affixed by the Detecting Officer intact; and that the label said to have been affixed by the Detecting Officer in the said jerry can was there at the time when the above material object was identified in court. In the above circumstances, the reliance placed by the Trial Court upon MO1, has also to be termed as improper. Having regard to the above discrepancies and shortcomings in the evidence adduced by the prosecution, it can only be held that the prosecution had failed to establish that the accused committed offence under Section 8(1) and (2) of the Abkari Act. Needless to say that the conviction of the petitioner by the Trial Court and the Appellate Court, as well as the modified sentence imposed by the Appellate Court, are liable to be set aside.

In the result, the revision petition stands allowed. The judgment dated 19.11.2013 of the III Additional Sessions Judge, Palakkad in Crl.A.No.144/2011 is set aside. The petitioner/accused, is found not guilty of the offence under Section 8(1) and (2) of Abkari Act, charged against him, and he is acquitted thereunder.