IN THE HIGH COURT OF KERALA AT ERNAKULAM CRL A No. 2436 of 2006(A) 1. MOHANAN PILLAI, ... Petitioner Vs 1. STATE OF KERALA, ... Respondent For Petitioner :ADV.K.SANILKUMAR(STATE BRIEF) For Respondent :PUBLIC PROSECUTOR The Hon'ble MR. Justice V.RAMKUMAR Dated :08/02/2007 O R D E R V. RAMKUMAR, J. --------------------------------------------- CRL.A.NO. 2436 OF 2006 --------------------------------------------- Dt. FEBRUARY 8, 2007 JUDGMENT
In this appeal preferred from the Central Prison, Thiruvananthapuram, the
appellant who was the sole accused in S.C.No. 602/2002 on the file of the Addl.
Sessions Court (Abkari), Kottarakkara, challenges the conviction entered and the
sentence passed against the appellant for offences punishable under sec.55(a)
of the Abkari Act, read with secs.8(1) and 8(2) of the said Act.
2. The case of the prosecution is that on 8.12.1998 at about 6.30 p.m.
on a pathway near Karottu paddy fields within the limits of the Anchal Excise
Range, the accused was found carrying a 10 litre jerry can containing 5 litres of
illicit arrack and the accused has thereby committed offences punishable under
sec.55(a) read with sec.8(1) and (2) 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 altogether
examined four witnesses as PWs.1 to 4 and got marked six documents as
Exts.P1 to P6 and one material object as M.O.1.
4. After the close of the prosecution evidence, the accused was
questioned under sec.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.
5. Since the court below did not consider it 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 did not adduce any defence evidence.
6. The learned Addl. Sessions Judge, after trial, as per judgment dt.
8.11.2006 found the appellant guilty of the offences and sentenced him to
undergo rigorous imprisonment for two years and to pay a fine of Rs.1 lakh and,
on default to pay the fine, to suffer rigorous imprisonment for three months more.
It is the said judgment which is assailed in this appeal.
7. I heard Adv. Sri K.Sanilkumar, the learned counsel who defended the
appellant on State Brief, and Adv. Sri K.S.Sivakumar, the learned Public
Prosecutor who defended the State.
8. 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?
9. PW.1 is the Excise Inspector, Anchal who detected the offence. PW.2
is the Excise Preventive Officer who accompanied PW.1 on patrol duty. PW.3 is
the Preventive Officer who produced the accused and the contraband article
before court. PW.4 is the Excise Inspector who had laid the charge.
10. After bestowing my anxious consideration to the oral and
documentary evidence in the case I am of the view that the prosecution has not
succeeded in bringing home the guilt of the accused beyond reasonable doubt.
Even though the evidence of PWs.1 and 2 can be relied on to hold that the
accused was found in possession of a jerry can containing some liquid
suspected to be illicit arrack, the prosecution can succeed in securing a
conviction only if it is proved that a sample drawn from the said liquid and
forwarded to the chemical examiner through court in a tamper-proof condition
was found to contain the requisite percentage of ethyl alcohol to conclude that it
was illicit arrack.
11. Going by the recitals in Ext.P1 contemporaneous mahazar prepared
by PW.1 from the scene of detection itself, he had drawn a sample of 375 ml. in
a bottle having a capacity of 375 ml. and both the balance contraband liquor in
the jerry can as well as the sample bottle were sealed and produced before the
court on 9.12.1998. This part of the testimony of PWs.1 and 2 as corroborated
by the recitals in Ext.P1 mahazar is amply proved by Ext.P5 property list as per
which on 9.12.1998 the sealed jerry can as well as the sealed sample bottle
were received in court. On 9.12.1998 itself the learned committal magistrate
directed return of the jerry can together with the liquor inside it to the Excise
Inspector, Anchal for keeping possession of the same until further orders for the
reason that there was dearth of space in the thondy room of the court. The only
other material produced by the prosecution is Ext.P6 certificate of chemical
analysis to show that the sample analysed thereunder showed that the liquid
contained 27.15% by volume of ethyl alcohol. It is not known as to how and why
a sample was forwarded to the chemical examiner as per a letter dt. 8.1.1999
seen referred to in Ext.P6 certificate of chemical analysis. There was no
requisition or forwarding note proved or marked in this case. Even without a
request from the investigating agency it is not known as to why a sample was
forwarded by the committal magistrate on 8.1.1999. No doubt, PW.1 during his
evidence stated before court that he had submitted a requisition for forwarding
the sample to the chemical examiner for analysis and report. But no attempt
whatsoever was made to mark the office copy of the alleged requisition. Neither
the prosecutor who was in charge of the case nor the trial Judge took any pains
to see whether there was, in fact, the office copy of the requisition available in
the court records so that the same could be marked as an exhibit.
12. Even if there was such a requisition, there is yet another
unsurmountable hurdle for the prosecution. After the receipt of the properties
before the magistrate on 9.12.1998, there is no document before court to
indicate whether any direction was given by the magistrate to despatch the
sample bottle to the chemical examiner much less any compliance of the said
direction. Ordinarily it is the thondy section clerk who is the custodian of the
properties produced before a criminal court. It is such a member of the court
staff who is expected to deal with the properties received in a case. In the
normal course, if a requisition or a forwarding note had been submitted by the
investigating agency, the magistrate should have directed the thondy section
clerk to despatch the sample (if already produced before court) or to draw a
fresh sample from the bulk quantity and despatch the same to the chemical
examiner for analysis. Absolutely no material has been produced to show that
any such direction was given and such direction was complied with. After the
receipt of the properties in court on 9.12.1998 what is seen is that a sample is
despatched on 8.1.1999 from the court of the committal magistrate and the
same is received in the chemical examiner’s laboratory on 12.1.1999. The court
is kept in the dark as to who had despatched the sample and on what date and
also as to whether it was the very same sample bottle which was produced in
court on 9.12.1998 that was forwarded to the chemical examiner’s laboratory.
These are all matters for record. It is only when a sampling has been ordered or
when the sample (already before court) has been directed to be forwarded to
the chemical examiner, could a presumption be drawn that official acts have
been regularly performed in view of sec.114(e) of the Evidence Act. For want of
this link evidence, the prosecution has to fail. The conviction entered and the
sentence passed against the appellant by the court below overlooking these vital
aspects of the matter cannot, therefore, be sustained and are accordingly
dislodged. The appellant is found not guilty of the offence punishable under
sec.55(a) read with sec.8(1) and 8(2) 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 is found necessary in connection with any other
13. Before parting with this case I am constrained to observe that the
prosecution in this case had to fail not on account of any lapses or omission on
the part of the investigating officer. If the detecting officer had submitted a
forwarding note or a requisition for forwarding the sample bottle produced by him
along with the properties to the chemical examiner as PW.1 would have it, it was
the bounden duty of the prosecutor in charge of the case to have the office copy
of such forwarding note or requisition marked as an exhibit. The trial Judge also
had a responsibility in such matters. PW.1 had deposed before court that he
had filed a requisition which can only be in duplicate. The original one will
accompany the sample to the office of the chemical examiner and the duplicate
will be retained in the court of the magistrate. This office copy of the requisition
or forwarding note should have been traced out and marked in the case. Yet
another lapse is the usual omission which takes place in the committal court.
There is absolutely no contemporaneous record maintained in the court of the
committal magistrate to show that a direction was given to the thondy section
clerk to despatch the sample bottle to the chemical examiner in a temper-proof
condition and the compliance of such direction. In the absence of any
contemporaneous record, the thondy section clerk concerned could have been
either cited and examined as an additional prosecution witness if the public
prosecutor in charge of the case was really vigilant and had evinced a sense of
responsibility. That also has not been done and the consequence has been
failure of justice. Committal magistrates should take care to see that any
proceedings with respect to properties produced before them are properly
recorded so that there is no room for criticism that judicial and official acts have
not been properly done. It is the duty of the magistrate to preserve the office
copy of the covering letter which is sent along with the properties to the chemical
examiner so that such office copies are made available during trial to be marked
as exhibits. There has to be written record indicating sampling, if any, done and
the despatch of the sample so taken or the sample which has already been
produced before court so that it does not give room for any adverse comment
during trial. It is for want of the link evidence that the prosecution in this case
had to fail. Some sense of responsibility is expected in the trial Judges also.
After all, the purpose of conducting trial is not merely to see that the person in
the dock is acquitted due to the lapses on the part of the investigating agency or
the prosecuting agency, but to see that a person who is really guilty is brought to
The registry shall either forward a copy of this judgment to all Magistrates
and Sessions Judges or issue an official memorandum highlighting the duties
and responsibilities of the magistrates and trial judges while dealing with
prosecutions under the Abkari Act.
(V.RAMKUMAR, JUDGE) CRL.A.2436/2006 8 mt/- CRL.A.2436/2006 9 V. RAMKUMAR, J. --------------------------------------------- CRL.A.NO. 2436 OF 2006 --------------------------------------------- Dt. FEBRUARY 8, 2007 JUDGMENT