IN THE HIGH COURT OF KERALA AT ERNAKULAM
CRL A No. 1124 of 2006()
1. SHAJI, S/O.PRABHAKARAN, C.NO.9856,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.SABU GEORGE(STATE BRIEF)
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :02/01/2007
O R D E R
V. RAMKUMAR, J.
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CRL.A.NO.1124 OF 2006
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Dt. JANUARY 2, 2007
JUDGMENT
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 under sec.55(a)
and 55(i) of the Abkari Act.
2. 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 under sec.55(a) and
55(i) of the Abkari Act.
3. 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
CRL.A.1124/2006 Page numbers
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.
4. Since the court below did not consider this as a
fit case for recording an order of acquittal under sec.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.
5. 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.
6. 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.
7. The only point which arises for consideration in
this appeal is as to whether the conviction entered and the
CRL.A.1124/2006 Page numbers
sentence passed against the appellant are sustainable or
not?
THE POINT
8. 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.
9. 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.
10. 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
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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
CRL.A.1124/2006 Page numbers
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
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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 v. Daulat Ram – AIR 1980 SC 1314 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 secs.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.
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(V.RAMKUMAR, JUDGE)
mt/-
CRL.A.1124/2006 Page numbers
V. RAMKUMAR, J.
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CRL.A.NO.1124 OF 2006
JUDGMENT
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JANUARY 2, 2007