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SATHI, S/O. PEETHAMBARAN v. STATE OF KERALA, REPRESENTED BY THE - CRL A No. 1458 of 2006(C) [2007] RD-KL 2128 (30 January 2007)


CRL A No. 1458 of 2006(C)

... Petitioner


... Respondent



The Hon'ble MR. Justice V.RAMKUMAR

Dated :30/01/2007



CRL.A.NO. 1458 OF 2006 Dt. JANUARY 30, 2007


In this appeal preferred from the Central Prison, Thiruvananthapuram, the appellant who was the accused in S.C.No.262/2001 on the file of the Addl. Sessions Court (Fast Track No.II), Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for an offence punishable under sec.55(a) of the Abkari Act.

2. The case of the prosecution is that on 30.6.2000 at about 12 noon the accused was found in possession of 10 litres of illicit arrack in a black jerry can in Malayamtheri - Paramukku road ner the rubber plantation of one Ayyappan Pillai in Kottackkakam muri of Aryanadu village and that the accused has thereby committed offences punishable under secs.8, 55(a) & (h) and 58 of the Abkari Act.

3. On the accused pleading not guilty to the charge framed against him by the court below for an offence punishable under sec.55(a) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined six witnesses as PWs.1 to 6 and got marked five documents as Exts.P1 to P5 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 Crl..A.No.1458/2006 2 circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence.

5. He had the following to submit before court:- He is a person who is eking his livelihood by doing coolie work. When he was in the house of his friend, the police had come there in search of his friend. Seeing him in the house, the police asked him as to why he was there. He was then taken to the police station stating that he should be knowing the whereabouts of his friend. He is innocent.

6. Since the court below did not consider this 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.

7. The learned Addl. Sessions Judge, after trial, as per judgment dt.15.6.2006 found the appellant guilty of the offence punishable under sec.55(a) of the Abkari Act and sentenced him to undergo simple imprisonment for 1= years and to pay a fine of Rs.1 lakh and, on default to pay the fine, to suffer simple imprisonment for 3 months. It is the said judgment which is assailed in this appeal.

8. I heard Adv. Smt. Sangeetha Lakshmana, the learned counsel who defended the appellant on State Brief, and Adv. Sri K.S.Sivakumar, the learned Public Prosecutor who defended the State.

9. The only point which arises for consideration in this appeal is as to Crl..A.No.1458/2006 3 whether the conviction entered and the sentence passed against the appellant are sustainable or not? THE POINT

10. P.Ws.1 to 3 are the independent witnesses to the arrest, search and seizure of whom PW.1 is an attestor to Ext.P1 mahazar as well. But all of them turned disloyal to the prosecution and did not support the prosecution. PW.4 is the police constable who accompanied the detecting officer while the latter went on patrol duty. PW.5 is the Asst. Sub Inspector of Aryanadu Police Station who detected the offence. He was proceeding in his police jeep on patrol duty in the company of other policemen including PW.4. PW.6 is the Sub Inspector of Aryanadu Police Station who, after completing the investigation, laid the charge before court.

11. After an anxious re-appraisal of the oral and documentary evidence in the case and after hearing both sides, I am not satisfied that the prosecution has succeeded in establishing the guilt of the accused beyond reasonable doubt. No doubt, PWs.1 to 3 who are the independent witnesses to the arrest, search and seizure turned hostile to the prosecution. The courts are not unfamiliar with such witnesses. If the testimony of the detecting officer is credible and free from blemishes, the same can be accepted in proof of the arrest, search and seizure notwithstanding the unfriendly attitude shown by the independent witnesses to the mahazar (see Sivaraman v. State of Kerala - 1981 KLT (SN) p.9).

12. Even though the testimony of PWs.4 and 5 can be relied on to hold Crl..A.No.1458/2006 4 that the accused was found carrying a black jerry can containing a liquid believed to be illicit arrack, the prosecution can succeed only if it is shown that a sample drawn from the bulk quantity allegedly carried by the accused and forwarded to the chemical examiner through the court of the committal magistrate was found to contain ethyl alcohol so as to conclude that it was illicit arrack. Even though a black jerry can of 10 litre capacity containing a liquid alleged to be illicit arrack was produced before the committal magistrate on 30.6.2000 and was received as T-164/2000, the description of the property in Ext.P3 property list does not show that the can was sealed. But Ext.P1 contemporaneous mahazar prepared by PW.5 from the spot itself shows that after seizing the can, he had sealed it. Likewise, Ext.P2 F.I.R. also states that the can possessed by the accused was sealed after it was seized by PW.5. Therefore, there is some doubt as to whether the can which was seized and sealed by PW.5 was the one which was produced before court as per Ext.P3 property list. In Ext.P3 property list, on 30.6.2000 itself there is an endorsement by the magistrate as follows:-

"M.Os. produced in the case. Sample may be forwarded to the chemical lab. After taking the sample the balance arrack and can may be returned to the S.I. of Police, Aryanadu under safe custody until further orders. There was not even a direction in the above endorsement to take sample. The Crl..A.No.1458/2006 5 only other evidence that is before court is Ext.P4 forwarding note dt. 30.6.2000 filed before court on 26.7.2000 requesting the magistrate to draw 180 ml. of sample from the bulk quantity already produced before court and to send the same to the chemical examiner's laboratory for analysis and report. Ext.P5 is the certificate of chemical analysis dt. 28.2.2001. It refers to a letter dt. 25.8.2000 received from J.F.C.M.-I, Nedumangad and the receipt of a sealed bottle containing 180 ml. of a clear and colourless liquid alleged to be a country liquor. First of all, there is no direction by the magistrate in the aforementioned endorsement on Ext.P3 to take a sample or indicating the quantity of sample to be taken. In fact, the magistrate could not have issued any such direction on 30.6.2000 since Ext.P4 forwarding note was filed in court only on 26.7.2000. Therefore, after receipt of Ext.P4 forwarding note on 26.7.2000, the magistrate should have directed the thondy section clerk in charge of the properties to take a specified measure of sample from the bulk quantity received in this case and to despatch the same in a tamper-proof condition to the chemical examiner's laboratory. There is no record before court evidencing any such direction by the magistrate. The office copy of the covering letter of the magistrate was not produced. The thondy section clerk was also not cited or examined as a witness. This means that on some day between 26.7.2000 and 25.8.2000 somebody might have taken sample from some bulk quantity in court and might have despatched the same under the covering letter of the magistrate. This court is kept in the dark as to who took the sample and on which date and how much Crl..A.No.1458/2006 6 quantity and also whether it was despatched in a tamper-proof condition. It is well settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the chemical examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so when the sample might have changed several hands before it reached the hands of the chemical examiner (see State of Rajasthan v. Daulat Ram - AIR 1980 SC 1314 and Valsala v. State of Kerala - 1993 (2) KLT 550 (S.C.). In this case it cannot be conclusively held that a sample was drawn from the jerry can allegedly seized from the possession of the accused and that it was the very sample which reached the hands of the chemical examiner in a tamper proof condition. This is particularly so, when what is revealed is that the jerry can which was produced before court had no seal whereas the jerry can allegedly seized by PW.5 under Ext.P1 mahazar was a sealed one. The contention of the learned Public Prosecutor that regularity of sampling and despatch can be presumed as the same are official acts within the meaning of sec.114(e) of the Evidence Act can be of any avail only if there is some acceptable evidence to show that sampling was, in fact, done in the court and the sample so drawn was despatched from the court. When there is not even an endorsement on any of the court records to the effect that sampling was done on a particular day and that the sample so drawn was forwarded to the chemical examiner's laboratory, there is no question of the court presuming that official acts were regularly Crl..A.No.1458/2006 7 performed. It is only when official acts are shown to have been performed, can the court presume that such official acts were regularly and properly performed. It is this link evidence which is missing in this case. In such circumstances it may not be safe to record a conviction against the accused who is definitely entitled to the benefit of doubt arising therefrom. The conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained and is accordingly dislodged. The appellant is, therefore, found not guilty of the offence punishable under sec.55(a) 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 case. In the result this appeal is allowed setting aside .the conviction entered and the sentence passed against the appellant.


mt/- Crl..A.No.1458/2006 8


CRL.APPEAL No.1458 of 2006




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