Raju vs State Of Kerala

A.Badharudeen, J

The sole accused in S.C.No.959/2009 on the file of the Sessions Court, Thrissur, being aggrieved by the conviction and sentence imposed against him, as per judgment dated 12.01.2015, has preferred this appeal under Section 374 of the Code of Criminal Procedure. The respondent herein is the State of Kerala represented by the Public Prosecutor.

Heard the learned counsel for the appellant as well as the learned Public Prosecutor.

Shown off unnecessary details, the allegation of the prosecution is that on 16.10.2007 at about 1.30 pm while the Excise Preventive Officer attached to Excise Circle Office, Irinjalakuda and his party were on patrol duty, on suspicion, when the accused was intercepted, it was found that he had possessed 2 litres of arrack in a can against the prohibitions contained in the Kerala Abkari Act. The accused was arrested and contraband taken into custody. Crime was registered alleging commission of offence under Section 8(1) and 8(2) of the Kerala Abkari Act.

On investigation, final report filed before the Jurisdictional Magistrate and, in turn, the case was committed to the Court of Sessions for trial and disposal. The 3rd Additional Sessions Judge tried the matter after completing pre-trial formalities and recorded evidence of PWs 1 to 3 and Exts.P1 to P9 apart from marking MO1 on the side of the prosecution.

On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C and his explanation to the incriminating circumstances found in evidence got recorded. When he was given opportunity to adduce evidence, DW1 was examined and Ext.X1 got marked.

On appreciation of the evidence, the learned Sessions convicted the accused under Section 8(1) of the Kerala Abkari Act and sentenced to undergo simple imprisonment for a period of 6 months and to pay fine of Rs.1 lakh. The above conviction and sentence are under challenge in this appeal.

The learned counsel for the appellant argued that in this case the detecting officer is PW1, who is the Excise Inspector and he himself prepared inventory in violation of the mandate of Section 67B of the Kerala Abkari Act.

According to the learned counsel for the appellant, as per Section 67B of the Kerala Abkari Act, the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of an Assistant Excise Commissioner. In support of this argument, decision of this Court reported in [2016 (4) KLT 727], Chandran v. State is placed by the learned counsel for the appellant.

The learned Public Prosecutor also not disputed the legal position and he also submitted that the legal position as argued by the learned counsel for the appellant is not changed so far.

Going  by  the  decision  highlighted  by  the  learned counsel for the appellant, subsequently followed in the decision reported in [2020 (3) KLT 727], Balakrishna Rai v. State of Kerala, the legal position is emphatically clear that Section 53A(2) of the Kerala Abkari Act mandates that the inventory shall be prepared by the authorised officer. Section 67B provides that the authorised officer must be an officer authorised by the Government by notification in the Gazette and the said officer is an officer not below the rank of Assistant Excise Commissioner.

SRO 671/75 provides that Assistant Commissioners in-charge of Excise Divisions are authorised officers under sub-section (1) of Section 67B of Abkari Act for the purpose of Section 67B within their respective jurisdiction.

In this case the independent witness, PW2, examined by the prosecution to prove the recovery of contraband from the accused, turned hostile to the prosecution and he did not support the prosecution in relation to the recovery. However, he admitted his signature in Ext.P2 recovery mahazar. PW3 examined in this case is the Excise Inspector, Chalakkudi and his evidence is confined to the registration of crime marked as Ext.P4 and production of the accused before the court after preparing Ext.P5 property list and forwarding of sample to the Forensic Science Laboratory. On evaluation of the available evidence in this case, it is to be held that, the inventory and crime detection are the volition of PW1, who is not authorised under Section 67B of the Act to prepare inventory.

In Chandran's case (supra), and in a subsequent decision reported in [2021 KHC 2446], Abhilash v. State of Kerala, this Court held that when inventory was prepared in violation of the statutory mandate, accused is entitled to acquittal. Thus it appears that the argument advanced by the learned counsel for the accused to canvass acquittal is having force.

Apart from that, the prosecution is bound to prove that the contraband was collected in a tamper proof condition and the same reached the lab through the property clerk in a tamper proof condition. In this case the property clerk was not examined to prove production and custody of the contraband before the court and forwarding of the same to the Forensic Science Laboratory in tamper free condition. In the decision reported in [2021 (5) KHC 347 : 2021 (5) KLT 321], Vijayan v. State of Kerala this Court apprised the duties of the officers concerned, and it was held that any dereliction in the matter of collecting sample, forwarding the same to the court, then to Forensic Science Laboratory and getting report of the expert in a tamper proof condition would vitiate the entire prosecution case and the same is a reason for acquittal. In Vijayan's case (supra), this Court held as under:

“While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sampel 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 appears that, in this case the property clerk was not examined and there is non compliance of the mandate stipulated under Section 67B of the Kerala Abkari Act. That apart, no convincing evidence forthcoming to hold that the contraband reached the chemical examiner in a tamper free condition. For these reasons, the conviction and sentence imposed by the trial court shall not sustain.

In the result, this appeal stands allowed and the conviction and sentence imposed by the trial court against the appellant stand set aside and the bail bond of the appellant stands cancelled.

It is ordered that fine, if any, deposited by the appellant in obedience to the order of this Court shall be refunded to the appellant, as per law.

Registry is directed to forward a copy of this judgment to the Sessions Court, Thrissur within a period of 7 days for compliance and information.