Shaji vs State of Kerala

V. Ramkumar, J.—In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the sole accused in S.C.No.945/2000 on the file of the Addl. Sessions Court for Trial of Abkari Act Cases, Neyyattinkara, challenges the conviction entered and the sentence passed against him by the said court for offences punishable u/s 55(a) and 55(i) of the Abkari Act.

The case of the prosecution is that on 18.7.1998 at 10.15 a.m. the accused was found in possession of 4 litres of illicit arrack in a jerry can (having a capacity of 5 litres) and a glass tumbler (having a capacity of 150 ml.) intended for clandestine sale and the accused has, thereby, committed offences punishable u/s 55(a) and 55(i) of the Abkari Act.

On the accused pleading not guilty to the charge framed against him by the court below for the aforementioned offences, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 4 witnesses as PWs.1 to 4 and got marked 5 documents as Exts.P1 to P5 and 2 material objects as M.Os.1 and 2.

Since the court below did not consider this as a fit case for recording an order of acquittal u/s 232 Cr.P.C., the accused was called upon to enter on his defence and to adduce any evidence which he might have in support thereof. The accused got marked Ext.D1 certified copy of the relevant page of the thondy section register of the committal court and also examined the thondy section clerk of that court as D.W.1.

The learned Addl. Sessions Judge, after trial, as per judgment dt. 6.9.2005 found the appellant guilty of the offences charged against him and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1 lakh and, on default to pay the fine, to suffer simple imprisonment for three months more. It is the said judgment which is assailed in this appeal.

I heard Adv. Sri Sabu George, the Learned Counsel who defended the appellant on State Brief, and Adv. Sri Sivakumar, the learned Public Prosecutor who defended the State.

The only point which arises for consideration in this appeal is as to whether the conviction entered and the sentence passed against the appellant are sustainable or not?

THE POINT

PWs.1 and 2 are the independent witnesses to the arrest, search and seizure in this case. Even though both of them admitted their signatures in Ext.P1 mahazar prepared by the detecting officer, they turned hostile to the prosecution. P.W.3 is the Head Constable of Vizhinjam Police Station who accompanied the detecting officer. Exts.P1 to P3 and M.Os.1 and 2 were marked through him. PW.4 was the Sub Inspector of Police, Vizhinjam Police Station. He detected the offence. DW.1 is the thondy section clerk attached to the J.F.C.M.-II, Neyyattinkara.

After hearing both sides and after a re-appraisal of the oral and documentary evidence in the case, I am not satisfied that the prosecution has succeeded in bringing home the guilt of the accused beyond reasonable doubt.

Even though the evidence of PWs.3 and 4 regarding the arrest of the accused and search and seizure of M.Os.1 and 2 from his possession could be relied on, it cannot be conclusively said that the sample which was analysed in this case and which was found to contain 28.04% by volume of ethyl alcohol was indubitably drawn from M.O.1 jerry can allegedly seized from the accused. Both according to PWs.3 and 4 and also as per the recitals in Ext.P1 mahazar allegedly prepared by PW.4 from the spot itself, PW.4 had taken a sample of 250 ml. from the bulk quantity of contraband liquor. But the only properties produced before the committal magistrate on 18.7.1998 and received as T299/98 were a black jerry can having a capacity of 5 litres and containing 4 litres of the alleged contraband arrack and an empty glass tumbler having a capacity of 150 ml. Even though a third item which was described as a sample bottle containing 250 ml. was entered in Ext.P3 property list, the same is scored off. Ext.D1 is the certified copy of the thondy register maintained by the committal magistrate. It also shows that only the aforementioned two items were produced and received in court on 18.7.1998. Even though on the right hand side column there is an endorsement which reads "received sample", the date shown below the initials of that endorsement bears the date 8.7.50 which does not make any sense. Moreover, if, as a matter of fact, the sample which was allegedly drawn by PW.4 from the spot itself had been produced along with the other two material objects on 18.7.1998 itself, that would have been entered in column 2 of the thondy register as item No.3. But Ext.D1 gives the description of only two items which are the black jerry can and the glass tumbler. Ext.P4 certificate of chemical analysis dt. 30.11.1998 refers to a letter dt. 14.10.1998 of the committal magistrate while despatching a sample bottle containing 250 ml. of a clear and colourless liquid alleged to be arrack. There is no evidence to indicate that this sample despatched to the chemical examiner''s laboratory was the same sample which was taken by PW.4 from the spot itself or was taken by the office of the magistrate where DW.1 was the thondy section clerk at the relevant time. DW.1 has no case that any sample was taken from the magistrate''s court. If, as a matter of fact, the sample allegedly drawn by PW.4 from the spot had been produced in court along with the other two items, one would have expected PW.4 to submit a requisition or a forwarding note requesting the magistrate to send the sample bottle to the chemical examiner for analysis. No requisition or forwarding note has been filed or marked in this case. It is not known as to why a sample was despatched to the chemical examiner''s laboratory by the committal magistrate even without a requisition or a forwarding note by the investigating agency. In a prosecution of this nature, a conviction can be entered against the accused only if the prosecution successfully proves that a sample was drawn from the bulk quantity of the contraband liquor allegedly carried by the accused and that the said sample which had changed several hands before reaching the hands of the chemical examiner had been forwarded to the chemical examiner in a tamper-proof condition (vide State of Rajasthan Vs. Daulat Ram, and Valsala v. State of Kerala 1993 (2) KLT 550 (S.C.). There is thus no acceptable link evidence to prove this aspect of the matter. When there is no acceptable material to show that the sample which was analysed under Ext.P4 certificate of analysis was the sample drawn from the bulk quantity of the contraband liquor allegedly carried by the accused, the result of analysis disclosed by Ext.P4 certificate is of no avail to the prosecution. The conviction entered and the sentence passed against the appellant overlooking this vital aspect of the matter cannot, therefore, be sustained and are accordingly dislodged. The appellant is found not guilty of the offences punishable under Sections 55(a) and 55 (i) of the Abkari Act and is acquitted thereunder. He is set at liberty. He shall be released from the prison forthwith unless his continued detention in prison is found necessary in connection with any other case.

In the result, this appeal is allowed as above.