K.R.Babu vs State Of Kerala

A. Badharudeen, J

The accused in SC No.662/2012 (2nd accused in OR No.68/2003 of Ranni Excise range) on the file of the Additional District & Sessions Judge No.II, Pathanamthitta has preferred this appeal challenging the conviction and sentence imposed against him as per judgment dated 2.1.2014 in the above case. The State of Kerala is the respondent herein.

I would like to refer the parties in this appeal as 'prosecution' and 'accused' hereinafter, for easy reference.

The brief facts of the case:

The prosecution allegation is that on 1.10.2013 as directed by the Deputy Excise Commissioner Southern Range, Excise officials of Kollam conducted raid in TS No.18/03-04 of Ranny Range and seized arrack from the toddy shop where license was given in favour of the 2nd accused. Thereafter, contraband was recovered and crime alleging commission of offences under Section 8 (1) r/w 8 (2) of Abkari Act was registered and investigated. Thereafter, charge laid against Accused Nos.1 and 2 before the Judicial First Class Magistrate Court, Ranny. Thereafter, case against the 2nd accused was committed to the court of Sessions after refiling the case of the 1st accused as his presence could not be secured, during committal stage.

The learned Sessions Judge made over the case to the Additional District & Sessions Judge II, Pathanamthitta for trial and disposal.

The Trial court framed charge and went on trial. During trial, PW1 to PW5 and CW1 were examined, and marked Ext.P1 to P12, C1 and Mo1 to MO3 were marked on the side of the prosecution. Thereafter, the trial court examined the accused under Section 313(1) (b) of Cr.P.C and recorded the explanation of the accused regarding the incriminating circumstances found against him in evidence. Though opportunity was given to the accused to adduce defence evidence, no defence evidence was adduced in this case.

The trial court after hearing bothsides and appraising the evidence available, convicted and sentenced the accused as under:

The accused is sentenced to undergo R1 for 5 years for the offence punishable u/s 8 (1) r/w 8 (2) of Abkari Act and also sentenced to pay a fine of Rs.2 Lakhs in default to undergo SI for 6 months. The accused is also gound guilty of the offence punishable u/s 56(b) of the Abkari Act.

The accused, who is aggrieved by the above conviction and sentence, is before this Court by filing this appeal.

Heard Sri.V.Sethunath, learned Counsel appearing for the appellant/accused and Sri.Aravind Mathew, learned Public Prosecutor. Perused the evidence available.

It is submitted by the learned Counsel for the appellant/accused that in this case, the case of the 1st accused was split up and refiled. According to the learned Counsel, in a case of this nature, conviction of the 2nd accused, who is the licencee is possible only if the 1st accused got convicted. In this connection, learned Counsel pointed out the decision reported in [2010 (2) KLT 783], Mohanan P.M. Vs. State of Kerala, wherein it was held that, when the first part of the prosecution case, especially against the 1st accused, was repelled by the trial court, the trial court could not be justified in convicting the 2nd accused. A Similar case was considered in the above decision. However, the ratio of the decision has no application in the present case, wherein the case of the 1st accused is yet to be tried.

Another point argued to unsustain the verdict of the trial court is regarding the manner of collection of sample. It is pointed out that tamper free collection of samples and forwarding the same to the chemical examiner not at all established in this case. In this connection, evidence of PW3 - Detecting Officer, was given emphasis. It is submitted by the learned Counsel for the accused/appellant that PW3 had not given evidence as to the nature of seal used on the bottle containing the sample and the nature of the specifimen seal used to affix on the seizure mahazar as well as in the forwarding note.

But the learned Public Prosecutor attempted to justify tamper free collection of sample and obtaining chemical analysis report in a fair manner, ruling out the possibility of tempering. In order to allay the dispute in this regard, perusal of evidence of PW3 and CW1 are ncessary. On perusing the evidence given by PW3 the submission of the learned Counsel for the accused appears to be convincing. On perusing Ext.P1 recovery Mahazar, no sample seal affixed in the mahazar. Similarly, no seal affixed in the forwarding note marked as Ext.P10 also.

It is true that in the chemical analysis report marked as Ext.P6, it was stated that the seal on the bottle was intact and found tallied with sample seal provided. However, the nature of the sample seal could not be gathered either from Ext.P1 or from the records available.

In this case, PW2, an independent witness to the mahazar for the recovery and search, denied his signature in Ext.P1 recovery mahazar. However, he admitted his signature in Ext.P2 search list and Ext.P3 arrest memo. He did not support the prosecution in the matter of search and recovery and his evidence that he put his signature in Ext.P2 and Ext.P3 on the road while he was going back to his house after his job. PW4 and 5 are the Investigating officers and they supported the prosecution.

It is true that prosecution examined CW1 - thondi clerk to prove the custody of the contraband, after production before the court. But the evidence of CW1 is too vague and the same does not show the necessary details and the same is confined to receipt of MO's on 3.10.2003.

Though the learned Public Prosecutor argued in support of the conviction and sentence imposed by the trial court, he failed to justify the anomalies in the matter of collection of sample, non-disclosure of the nature of specimen seal and absence of specimen seal in the forwarding note as well as in the recovery mahazar.

It is settled by catena of decisions of this Court that the Detecting Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample, nature of the seal used to affix on the seizure mahazar, etc. Further the Detecting Officer should also produce the specimen of the seal before the court. Moreover the specimen of the seal shall be provided under seizure mahazar in the forwarding note so as to ensure tamper free collection and production of sample before the court for getting chemical analysis report. That apart, for ensuring that sample of contraband allegedly seized by the Investigating Officer from the accused had reached the Chemical Examiner for analysis, it has to be proved that seal affixed on the sample also is provided to the Chemical Examiner for comparison. Decisions reported in [2015 (1) KHC 822], Krishnan H. v. State; [2019 KHC 191], Krishnadas v. State of Kerala; [2016 KHC 175], Achuthan v. State of Kerala and [2020 KHC 5296], Bhaskaran K. v. State of Kerala & anr. are relevant on this point.

Coming to the second challenge; it is argued by the learned counsel for the accused/appellant that no specimen seal affixed on the forwarding note marked as Ext.P6. So also there is no mention in the chemical analysis report marked as Ext.P8 to prove that specimen seal was provided to the Chemical Examiner. Further it is submitted that no specimen seal affixed in the forwarding note, as already pointed out. On going through Exts.P6 and P8, this argument appears to be convincing and the learned Public Prosecutor also could not show the specimen seal in the above documents.

In this connection it has to be observed that in a case of this nature the prosecution could succeed only if it is proved that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner without possibility of tampering. Decisions reported in [1980 KHC 873, State of Rajasthan v. Daulat Ram; 1993(2) KLT 550 (SC), Valsala v. State of Kerala; 2007 KHC 3404, Sasidharan v. State of Kerala are given emphasis.

While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sample of the alleged contraband, the following measures to be followed:

Steps to be followed by the officer collecting the sample:

(i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;

(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;

(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;

(iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison;

(v) The said officer shall depose about compliance of the above before the court while giving evidence.

Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:

(i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court;

(ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note;

(iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical Examiner;

(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;

(v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove.

Measures to be ensured by the Chemical Examiner:

(i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;

(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C.

Unless and until the above safety measures are not ensured, it cannot be said that the sample of the contraband subjected to chemical examination by the Chemical Examiner is one collected from the possession of the accused. Any lacuna in this regard is a reason to disbelieve the recovery and the chemical analysis report. Consequently, the entire prosecution case would fail.

It is true that herein also chemical analysis report with a positive finding showing presence of prohibited liquor was produced. In the decision reported in AIR 2019 SC 3569, Vijai Pande v. State of U.P, the Apex Court held that mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be corelated.

On evaluation of the evidence available, the mandates necessary to ensure tamper proof collection of sample of the alleged contraband and its examination without tampering as discussed in detail, failed to be established by the prosecution without reasonable doubts. Therefore, the accused/appellant herein is entitled to benefit of doubt and as such the conviction and sentence imposed by the trial court in the above circumstances cannot sustain. In view of the matter, the same are liable to be set aside.

In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the accused are set aside. Consequently, the appellant/accused is acquitted for the offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled. He is set at liberty forthwith.

Amount, if any, being part of the fine deposited by the accused/appellant by order of this Court shall be refunded to him in accordance with the procedure established by law.