Surendran vs State of Kerala

V. Ramkumar, J.—The appellant who was the sole accused in Sessions Case No. 41 of 2002 on the file of the III Additional Sessions Judge, Fast Track -I, Thrissur, challenges the conviction entered and the sentence passed against him for an offence punishable u/s 58 of the Abkari Act.

The case of the prosecution can be summarised as follows:

On 19.07.1999, at about 12 noon, on the road in front of the house of one Bose near Nambiarpadi bridge in Pariyaram village, the accused was found in possession of 4 litres of arrack in a black jerry can of 5 litre capacity. Since the above possession was in contravention of the prohibition u/s 8(1) of the Abkari Act, the accused has committed an offence punishable u/s 8(2) of the said Act.

On the accused pleading not guilty to the charge framed against him by the court below for an offence punishable u/s 58 of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined 6 witnesses as P.Ws 1 to 6 and got marked 8 documents as Exts. P1 to P8 and one material object as MO1.

After the close of the prosecution evidence, the accused was questioned u/s 313(1)(b) Cr.P.C. with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence.

Since this was not a case of no evidence for the prosecution, the accused was not acquitted u/s 232 Cr.P.C. The accused did not adduce any defence evidence when called upon to enter on his defence.

The learned Addl. Sessions Judge as per judgment dated 31.10.2003 found the appellant guilty of the offence punishable u/s 58 of the Abkari Act and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,00,000/- and on default to pay the fine, to suffer rigorous imprisonment for three months. It is the said judgment which is assailed in this appeal by the accused.

I heard the learned Counsel appearing for the appellant as well as the learned Public Prosecutor.

PW1 who was the Excise Inspector, Chalakudy, is the detecting officer. PWs 4 and 6 were Excise Preventive Officers who accompanied PW1. PWs 2 and 3 are the independent witnesses to the arrest, search and seizure. Both of them turned hostile to the prosecution. PW5 is the Excise Inspector who claims to have conducted the investigation and filed the charge before court.

After hearing both sides and after perusing the lower court records, I am satisfied that the prosecution has not been able to establish the guilt of the accused beyond reasonable doubt. PW1 along with PWs 4 and 6 were allegedly proceeding on patrol duty when they claim to have stumbled upon the accused around 12 noon on 19.07.1999 on the road in front of the house of one Bose in Pariyaram village. The accused was allegedly carrying a black jerry can having a capacity of 5 litres containing 4 litres of arrack. PW1 claims to have arrested the accused and seized the contraband arrack after drawing a sample of 180 ml. therefrom and claims to have seized the contraband liquor and the sample bottle under Ext.P2 seizure mahazar prepared from the spot and to which PWs 2 and 3 signed as witnesses. PW4 claims to have taken the accused and the properties to the Excise Office, Chalakudy from where Ext.P4 crime and occurrence report is said to have registered and the accused as well as the properties produced before the Judicial First Class Magistrate, Chalakudy on 19.07.1999 itself along with Ext.P1 arrest memo, Ext.P2 seizure mahazer, Ext.P3 copy of arrest notice, Ext.P4 crime and occurrence report and Ext.P5 property list. Surprisingly, none of the above documents contain the seal of the Judicial First Class Magistrate, Chalakudy. Those documents contained a signature bearing date 19.07.1999. But, no prosecution witness has deposed that the said signature is that of the Magistrate. The Thondi Section Clerk who is the custodian of the properties before the Magistrate, also was not examined to prove the signature of the Magistrate. If the full signature which is found on the margin of Exts.P2 and P6 is that of the Magistrate, then the signature found at the bottom of the remand order found in Ext.P6 remand report has no resemblance at all to the signature found in the margin. It is not clear whether the signatures found in the margin are that of the Chief Ministerial Officer of the court or the Magistrate himself. If the signatures in the margin of Exts.P2 and P6 are that of the Magistrate, then the signature found at the foot of the remand order has no resemblance at all with the above signatures. Thus, there is no authentic record to show that the properties were produced before the Magistrate on 19.07.1999 itself and were received in court after due verification. Even though Ext.P6 remand report dated 19.07.1999 concludes by saying that the charge sheet will be duly submitted after investigation and the Seizure Mahazar, Arrest Memo in original, Statement of body Search, Chemical Requisition in duplicate, Thondi with Thondi list, sealed sample bottle etc. are being submitted, the lower court records do not contain either the forwarding note or the requisition for chemical examination of the sample bottle. Ext.P5 property list contains only the writings and signature of the Excise Inspector. There is an endorsement on Ext.P4 occurrence report as follows:

Await F.R.

The signature below the said endorsement does not resemble the signatures in the margin of Exts. P2 and P6. There is an endorsement on Ext.P5 property list as "Verify and receive" containing the date 19.07.1999 5.20 p.m. But, the signature below that endorsement has absolutely no resemblance with the signatures found in the margin of Exts.P2, P4 and P6. As mentioned earlier, the lower court records do not contain the requisition or forwarding note for forwarding the sample to the Chemical Examiner. All that we find is that in Ext.P7 certificate of chemical analysis, there is a reference to a letter No. PI. 284/99 dated 13.09.1999 from the Judicial First Class Magistrate, Chalakudy sending a sealed bottle containing 180 ml. of sample. The sealed sample bottle was received by the chemical examiner with the seal in tact. After analysis, the sample bottle was found to contain 3.57% by volume of ethyl alcohol. But there is no record to show that the despatch of the sample was on the basis of any forwarding note or requisition by the Investigating Officer. The office copy of the covering letter dated 13.09.1999 of the Magistrate is also not available in the court record. In a prosecution under the Abkari Act, the prosecution can succeed in entering a conviction against the accused only if it is proved that the sample allegedly drawn from the bulk quantity of liquor said to have been possessed by the accused, after a change of hands finally reached the hands of the chemical examiner is in a tamper-proof condition. (See State of Rajasthan Vs. Daulat Ram, , Valsala v. State of Kerala 1994 (2) KLT 550 and Sasidharan v. State of Kerala 2007 (1) KLT 720.) The prosecution in this case has failed to establish that the sample which was analysed as per Ext.P7 certificate of analysis was the very same sample which was duly produced before the Judicial First Class Magistrate, Chalakudy on 19.07.1999 and was duly forwarded to the Chemical Examiner in a tamper proof condition. It is also doubtful whether going by the percentage of ethyl alcohol in the sample, it could be concluded that the same was arrack. The conviction entered and the sentence passed against the appellant overlooking the above vital aspects of the matter, cannot therefore be sustained and are accordingly dislodged. Actually, for keeping possession and transporting arrack in contravention of the prohibition u/s 8(1) of the Act, the proper penal section is Section 8(2) and not Section 58. For that reason also, the conviction cannot be sustained. The appellant is accordingly found not guilty of the offence punishable u/s 58 of the Abkari Act and is accordingly acquitted of the same. He shall be set at liberty forwith.

Dated this the 29th day of September, 2009.