RAJESH S/O.SUKUMARAN Vs STATE OF KERALA

The appellant herein is the first accused in SC 23/2009

of the Court of Session, Kollam. He challenges the

conviction and sentence against him under Section 55 (a) of

the Kerala Abkari Act. (''the Act" for short). He and two

others faced prosecution before the court below, on the

allegation that at about 12.30 a.m on 15.10.2003 at

Kochalumoodu Junction, the appellant and two others were

found transporting a quantity of 280 litres of spirit

contained in eight cans of 35 litres of capacity in the Jeep

No.KL-01-L5404. It is alleged that on suspicion, the police

party led by the Excise Inspector, Karunagappally chased

the said vehicle, and after a few minutes of chasing, the

three persons stopped the vehicle, and they ran off. Though

the three persons including the driver ran off, one was

caught by the Excise team. He is said to be the present

appellant. On interrogation by the Excise Inspector, the

appellant stated that the quantity of spirit was in fact

transported by the driver of the vehicle for one

Radhakrishna Kurup, and that he was in fact taken by the 1st

accused on the way, for a company. Anyway, the Excise

Inspector arrested the present appellant, and he was

produced before the court on the same day along with the

properties. The other two accused were later arrested by

the Investigating Officer. Another Excise Inspector registered

the crime and produced the properties before the Range

Office, and investigation was taken over by the Circle

Inspector of Excise, Karunagappally. After investigation, the

Excise Inspector submitted final report in court.

The appellant and the two others appeared

before the learned Additional Sessions Judge (Adhoc) II,

Kollam, and pleaded not guilty to the charge framed against

them under Section 55 (a) of the Act. The prosecution

examined eight witnesses and proved Exts.P1 to P14

documents. The accused examined one witness in defence

to prove the case that he was in fact in his house on

15.10.2003.

On an appreciation of the evidence, the trial court

found the first accused guilty under Section 55 (a) of the

Act, and found the other two accused not guilty.

Accordingly, they were acquitted, but the 1st accused was

convicted under Section 55 (a) of the Act. On conviction, he

was sentenced to undergo rigorous imprisonment for three

years and to pay a fine of 1,00,000/- (Rupees One lakh

only) by judgment dated 27.2.2012. Aggrieved by the said

judgment of conviction, the 1st accused has come up in

appeal.

When this appeal came up for hearing, the

learned counsel for the appellant submitted that there is

absolutely no proper and satisfactory evidence to prove the

identity of the persons who ran off and escaped, or who was

arrested by the Excise Inspector, and that there was no

satisfactory evidence to prove that the sample examined at

the laboratory was in fact taken from the quantity of spirit

allegedly seized from the possession of the accused.

On a perusal of the entire materials, I find that

there is some substance in the submissions made by the

learned counsel. The appellant herein was admittedly not

the driver of the vehicle wherein some quantity of spirit was

seen by the Excise Inspector. Even according to the

prosecution, the vehicle was driven by one Biju, but the

Excise Officials could not locate him or arrest him during

investigation. So conveniently he was omitted and the final

report was filed against three others. The appellant herein

is said to be one of the persons who ran off and escaped. It

is not seen specifically and satisfactorily explained as to

how the persons who ran off and escaped from the seen

could be identified by the Excise Inspector in the night.

Though the Detecting Officer did not say anything about that

aspect in his examination-in-chief, the learned defence

counsel brought it out in cross-examination that he saw the

accused in the headlight of the vehicle. But when examined

further in cross-examination, he stated that he could see

everything in the street light. Thus, the witness is not

consistent, and his evidence is not satisfactory, as to how

exactly the persons who ran off and escaped, or the person

arrested were identified properly.

The detecting officer and also the Investigating

Officer are consistent that the vehicle in question was in

fact driven by one Biju. The appellant herein is admittedly

one of the passengers in the vehicle. It appears that this

petitioner was arrested or that he was prosecuted just for

the reason that he was also one of the passengers, and that

he also, along with others, ran off, on seeing the Excise

party. It is really doubtful whether the quantity of spirit

was transported in the jeep by the driver, or whether this

appellant had any role or complicity in the said act of the

driver. It appears that just because the Excise Inspector

could not locate or arrest the driver, he brought a

prosecution against the person who ran off on seeing the

excise party.

There is yet another very important aspect as

regards the samples produced. The detection mahazar

shows that seals were affixed on all the samples collected

by the detecting officer from the cans. The chemical

examination report shows that on examination in the

laboratory, the seals on the bottles were found tallying with

the samples provided. It is not known what is the sample

provided. Ext.P8 is the copy of the forwarding note

submitted by the Excise Inspector. This does not contain

any specimen seal. The defence relies on Krishnan v.

State of Kerala [2015 (2) KLT SN 8 Case No.11), wherein

this Court held that in a case where the specimen sample is

not seen in the copy of the forwarding note, it will have to be

presumed that seals were not provided properly in the

original also. In such a circumstance where the specimen

seal is not before the court for perusal, it cannot be found

that the chemical examination report relates to the sample

collected from the quantity of liquid seized from the

possession of the accused. This is a very serious infirmity in

the prosecution case. The specimen seal should be

produced in court, and it must be specifically and

satisfactorily proved that the seal found on the samples

bottles was nothing, but the seal furnished in court. In the

absence of such specimen seal in court, the report of

analysis cannot be accepted to find that it relates to the

sample collected from the liquid seized from the possession

of the accused. Thus, I find that the accused is entitled for

acquittal on the basis of the infirmity regarding the

specimen seal.

Even otherwise, I find that the prosecution case

as against this appellant is suspicious. The only material

against him is that on seeing the excise party, he also ran

off along with other accused. Just because he ran off or

made an attempt to escape, he cannot be prosecuted under

the provisions of the Act. To prosecute him and punish him,

there must be evidence to show that the spirit in question

was in fact possessed or carried or transported by him.

Here, the quantity of spirit was found in a jeep. The Excise

Inspector could detect who the driver was. Just because he

could not locate him, he was just omitted from the array of

accused and a final report was filed against the person who

made an attempt to escape. This is not the right way of

prosecution. The appellant herein can be found guilty only if

there is evidence to show that the spirit in question was

possessed or transported by him in the jeep driven by the

other accused, who could not be located by the investigating

officer. There is reason to believe that when the Excise

Inspector found it difficult to locate him, he brought a

prosecution against the person who made an attempt to

escape from the spot. I find that the prosecution case as

against the appellant stands not properly proved beyond

reasonable doubt. The benefit of this doubt must necessarily

go to him.

In the result, this appeal is allowed. The appellant is

found not guilty of the offence under Section 55 (a) of the

Act and he is acquitted of the said offence in appeal under

Section 386 (b)(i) Cr.P.C . The conviction and sentence

against him in S.C 23/2009 of the Court of Session Kollam

will stand set aside. The appellant is released from

prosecution and the bail bond, if any, executed by him will

stand discharged.