Philip Samuel vs State of Kerala

P.D. Rajan, J.—1. This appeal is preferred against the conviction and sentence in S.C. No. 296/2003 of Additional District and Sessions Judge (Adhoc) Fast Track Court-II, Pathanamthitta u/s.8 of the Abkari Act. The charge against the appellant is that on 27.10.1998 at 2.30 p.m. the Excise Inspector, Excise Enforcement and Anti Narcotic Squad, Pathanamthitta was conducting patrol duty within his jurisdiction. When he reached at Vadasserykara, the accused was found carrying a plastic sack in front of Government LP School in Vadasserikkara, the Excise Inspector intercepted him, inspected the plastic sack and detected 20 bottles of arrack each containing 375 ml. The appellant was arrested and contraband articles were seized and entrusted to the Excise Range Office, Ranny where they registered a case. The Excise Inspector, Ranni conducted investigation and laid charge before Judicial First Class Magistrate Court, Ranny. Subsequently, it was committed to Sessions Court, pathanamthitta. The case was later made over to Additional Sessions Judge, Pathanamthitta.

During trial, prosecution examined PW1 to PW6 and marked Exts.P1 to P7. The material objects MO1 and MO2 were admitted in evidence. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant u/s.8 (1) and (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for two years and fine of Rs. 1 lakh, in default of payment of fine, imprisonment for one year. Being aggrieved by that, he preferred this appeal.

The learned counsel appearing for the appellant contended that the alleged seizure was not proved in this case. At the time of seizure, 300ml arrack was taken as sample in 375ml bottle and sealed at the place of occurrence itself. It was sent over to the chemical examiner''s lab for examination and obtained Ext.P6 certificate, in which the quantity of the sample mentioned was full 180ml. The disparity in the quantity shows that the sample taken from the place of occurrence was not produced before Court and therefore, the appellant is entitled to get the benefit of doubt.

This Court in Ravi v State of Kerala [2011(3) KLT 353] held as follows:

"It is difficult for us to believe that PW 4 had produced the properties on 25/08/1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW 4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide - State of Rajasthan v. Daulath Ram(, AIR 1980 SC 1314) and Valsala v. State of Kerala (, 1993 (2) KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner''s laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See - Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW 4. Hence, the result of Ext. P7 Chemical Analysis cannot be applied against the appellant."

In an abkari case, corroborating evidence is necessary to show that the sample taken was produced before Court and the same sample was examined in the chemical examiner''s laboratory. For ascertaining the authenticity of the chemical examination result, I have examined the oral evidence.

The offence was detected by PW1 Excise Inspector, Excise Enforcement and Anti Narcotic Squad, Pathanamthitta. On 27.10.1998 at 2.30 p.m., while he was conducting patrol duty, reached infront of LP School, Vadasserikkara, at that time, the appellant was found carrying a plastic bag, which contained 20 bottles of arrack each containing 375ml. He inspected the bag and seized the arrack, after preparing Ext.P2 mahazar. The independent witnesses present there attested Ext.P2. Ext.P1 is the arrest memo. MO1 is the 19 bottles of arrack seized from the possession of the appellant and MO2 is the sack. During cross examination, PW1 admitted that he affixed his seal in MO1 and MO2. PW2 supported the evidence of PW1. He also identified MO1 and MO2. PW3 and PW4 admitted their signature in Ext.P2 seizure mahazar.

PW1 entrusted the seized article and the accused before Excise Range Office, Ranny. PW5 admitted that PW1 produced sample and thondy articles before him. On the basis of the report submitted by PW1, he registered a crime 25/1998 and Ext.P3 is the crime and occurrence report. The accused was produced before Court as per Ext.P4 remand application and the contraband articles were produced as per Ext.P5 property list. I have perused Ext.P5, in which the quantity of the sample was mentioned as 300ml. In Ext.P3 crime and occurrence report, the quantity of the sample was mentioned as 300ml. Analysing the evidence in Exts.P3 and P5, it is true that the sample of 300ml was taken from the seized arrack. PW6 conducted investigation and laid charge before Court. He obtained Ext.P6 report after examining the sample in the chemical examiner''s lab. As per Ext.P6, 36.66% volume of ethyl alcohol was detected in it. Ext.P7 is the forwarding note. In Ext.P7, the quantity sent over to the chemical examiner''s lab was mentioned as 180ml. Analysing the evidence in this case, it is found that 300ml sample taken by PW1 was not examined by the chemical examiner, on the other hand, he examined 180ml in the laboratory. The evidence in chemical examination report is merely an opinion which lends corroborative evidence to the direct evidence in a case. The direct evidence here shows that 300ml of arrack was taken as sample but as per Ext.P6 chemical examiner''s certificate, the sample received in the lab is only 180ml only. Then it is the primary responsibility of the prosecution to prove that they sent 180ml only to the chemical examiner''s lab. Where there is a glaring inconsistency between the direct evidence about taking of sample at the time of seizure and in the chemical examination report about the quantity of sample, undoubtedly there would be a manifest error. In the absence of such evidence, the accused is entitled to get the benefit of doubt. Therefore, conviction u/s.55(a) of the Abkari Act is unsustainable in law.

In the result, the conviction and sentence passed by the Additional Sessions Court, Pathanamthitta u/s.55(a) of the Abkari Act are set aside and the accused is acquitted and set at liberty.