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BABU @ STRONG versus STATE OF KERALA

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BABU @ STRONG v. STATE OF KERALA - CRL A No. 2115 of 2006 [2007] RD-KL 2456 (2 February 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

CRL A No. 2115 of 2006()

1. BABU @ STRONG,
... Petitioner

Vs

1. STATE OF KERALA,
... Respondent

For Petitioner :BABU (PARTY IN PRISON)

For Respondent :PUBLIC PROSECUTOR

The Hon'ble MR. Justice V.RAMKUMAR

Dated :02/02/2007

O R D E R

V. RAMKUMAR, J.

CRL.A.NO.2115 OF 2006 Dt. FEBRUARY 2, 2007 JUDG MENT The appellant who was the sole accused in S.C.No.882/2004 on the file of the Addl. Sessions Court (Fast Track No.I), Thiruvananthapuram, challenges the conviction entered and the sentence passed against him for an offence punishable under sec.55(a) read with sec.8(1) and 8(2) of the Abkari Act.

2. The case of the prosecution is that on 3.1.1998 at about 4 p.m. the accused was found in possession of 10 litres of illicit arrack in a black jerry can having a capacity of 10 litres on the Panchayath pathway leading to Mundonikkara near the Kallara Saravana cinema theatre within the limits of the Vamanapuram Excise Range and that the accused has thereby committed an offence punishable under secs.58 read with sec.8(1) and 8(2) 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) read with sec.8(1) and 8(2) of the Abkari Act, the prosecution was permitted to adduce evidence in support of its case. The prosecution altogether examined three witnesses as PWs.1 to 3 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 CRL.A.2115/6 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:- There was illicit sale of arrack through the toddy shop at Kallara during the period 1997-2000. For that reason the local people had caused a blockade of the said shop. Somebody informed the squad which conducted a raid and illicit arrack was seized from the toddy shop. Infuriated by the same, the gundas of the contractor of the shop prevailed upon an Excise Guard by name Crime Babu and foisted false cases against several persons belonging to Kallara and who had participated in the blockade. One of them was brutally murdered by the gundas and the said Excise Guard. This sort of atrocities were conducted by the Excise people until the detention of the Kalluvathukkal case. This case is also one such case in which the accused has been falsely implicated.

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.15.5.2006 found the appellant guilty of the offence charged against him and sentenced him to undergo rigorous imprisonment for 3 years and to pay a fine of Rs.1 lakh and, on default to pay the fine, to suffer rigorous imprisonment for one year. It is the said judgment which is assailed in this appeal.

8. I heard Adv. Smt. Sangeetha Lakshmana, the learned counsel who CRL.A.2115/6 3 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 whether the conviction entered and the sentence passed against the appellant are sustainable or not? THE POINT

10. CW.1 who was the Excise Inspector, Vamanapuram is the officer who detected the offence while on patrol duty in the company of PW.2, an Excise Guard. CW.1 died on 2.2.2003 and was, therefore, not available during trial. PW.1 is an independent witness to the arrest, search and seizure. Even though he admitted his signature in Ext.P1 contemporaneous mahazar prepared by CW.1, he turned hostile to the prosecution. PW.2 is the Excise Guard who had accompanied the detecting officer. PW.3 is the subsequent Excise Inspector who laid the charge before court.

11. Since CW.1, the detecting officer, was no more and could not be examined during trial, the prosecution had to fall back upon the testimony of PW.2, the Excise Guard who had accompanied CW.1. The evidence of PW.2 along with the contemporaneous mahazar prepared by CW.1 and to which PW.2 is an attestor can be accepted to find that on 3.1.1998 at 4 p.m. the accused was found carrying a jerry can containing some liquid believed to be contraband arrack and that the accused was arrested and the jerry can together with the liquid therein were seized under Ext.P1 mahazar. But the prosecution can CRL.A.2115/6 4 secure a conviction only if it is proved that the contents of the jerry can was contraband arrack. Admittedly, CW.1 did not draw any sample from the liquid contained in the jerry can allegedly possessed by the accused. Going by the testimony of PW.2 and Ext.P1 contemporaneous mahazar prepared by CW.1 as also Ext.P4 crime and occurrence report, the can which was seized by CW.1 as per Ext.P1 mahazar was sealed by him from the spot itself. But a perusal of the property list shows that the 10 litre black jerry can containing the allegedly contraband arrack which was produced before the JFCM-I, Attingal was not a sealed can. There was absolutely no explanation forthcoming as to whether it was the same can which was seized by PW.1 and sealed from the spot itself. Even if it is to be assumed that the can which was produced in court on 5.1.1998 and received as T-13/1998 was the very same can which the accused was allegedly carrying, the prosecution will have to further prove that the liquid contained in the can was illicit arrack for which purpose a sample drawn from the can ought to have been forwarded in a tamper-proof condition to the chemical examiner's laboratory. Even though the can was produced in court on 5.1.1998, Ext.P6 forwarding note was filed only on 19.12.2001. Going by the wording of Ext.P6, the request is to send the sample to the chemical examiner for analysis. But there was no sample before court so as to be forwarded to the chemical examiner. So, in all probability, a sample must have been taken from the court of the committal magistrate. There is absolutely no record from which it could be discerned that the thondy section clerk or anybody in charge of the properties was directed by the magistrate to take sample indicating the volume of sample to CRL.A.2115/6 5 be drawn and to forward the same to the chemical examiner's laboratory. Likewise, there is also no record available to show as to who drew the sample and on which date. The only other material is Ext.P5 report of chemical analysis which refers to a letter dt. 8.1.2002 received from JFCM-I, Attingal while forwarding a sealed sample bottle containing 180 ml. of colourless liquid. The said letter of the magistrate or its office copy was not marked or proved. The thondy section clerk who was in charge of the properties was also not cited or examined. The submission by the learned Public Prosecutor that in the absence of any challenge during cross-examination regarding the sampling and forwarding of the same to the chemical examiner's laboratory, it is not open to the defence to assail the same, does not carry conviction. The burden is definitely on the prosecution to prove that the liquid in the jerry can allegedly carried by the accused was illicit arrack for which purpose chemical analysis of the same alone could provide the best authentic evidence. When there is no material from which it could be inferred that on a particular day, pursuant to the directions of the magistrate, a particular member of the court staff drew a sample from the bulk quantity allegedly carried by the accused and the sample was despatched in a tamper-proof condition to the chemical examiner's laboratory, there cannot be any presumption either by recourse to sec.114(e) of the Evidence Act. It is only when there is an acceptable evidence at least in the form of an endorsement to show that sampling was done and the sample was despatched, could there be a presumption drawn regarding the regularity of the sampling and the despatch of the same to the chemical examiner's laboratory CRL.A.2115/6 6 which are all official acts. In a prosecution of this nature, the prosecution can successfully bring home the guilt of the accused only if it is able to show that the sample which was ultimately analysed by the chemical examiner was the very same sample drawn from the contraband liquor allegedly carried by the accused and which sample had 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.). The prosecution in this case is to fail for want of the link evidence to connect the jerry can allegedly carried by the accused with the certificate of chemical analysis as per which the sample received by the chemical examiner was analysed to find the same to contain 48.75% by volume of ethyl alcohol. 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 case.

(V.RAMKUMAR, JUDGE)

mt/- CRL.A.2115/6 7

V. RAMKUMAR, J.

CRL.A.NO.2115 OF 2006

JUDGMENT

Dt. FEBRUARY 2, 2007


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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