Accused in S.C.No.326/02 on the file of Additional Sessions Court, (Adhoc No-I), Thiruvananthapuram is the appellant herein.
2. The appellant was charge sheeted by the Sub Inspector of Police, Poojappura in Crime No.133/2000 of Poojappura Police Station under Section 55(a) of Abkari Act.
3. The case of the prosecution in nutshell was that on 07.09.2000 at about 5.30 p.m, the appellant was found to be in possession of 15 bottles of XXX Rum of 750 ml. each in MO2 bag for the purpose of sale on the side of Thirumala - Pangode road turning towards Hanuman Kovil on the northern side of Pangode Military Camp and thereby, he had committed the offence punishable under Section 55(a) of Abkari Act.
4. After investigation, final report was filed before Additional Chief Judicial Magistrate Court, Thiruvananthapuram and it was taken on file as C.P.No.27/2000 and thereafter, the case was committed to Sessions Court, Thiruvananthapuram under Section 209 of Code of Criminal Procedure by the Additional Chief Judicial Magistrate and after committal, it was taken on file as S.C.No.326/2002 by the Sessions Court, Thiruvananthapuram and thereafter, it was originally made over to Assistant Sessions Court, Thiruvananthapuram and thereafter, it was withdrawn and made over to Additional Sessions Court, Adhoc-I, Thiruvananthapuram for disposal.
5. When the appellant appeared before the court below, after hearing the Counsel for the appellant and the Additional Public Prosecutor, charge under Section 55(a) of Abkari Act was framed against the appellant by the court below and the same was read over and explained to him and he pleaded not guilty. In order to prove the case of the prosecution, PWs 1 to 3 were examined and Ext.P1 to P4 and MO1 series and MO2 were marked on the side of the prosecution. After closure of the prosecution evidence, the appellant was questioned under Section 313 of Code of Criminal Procedure and he denied all the incriminating circumstances brought against him in the prosecution evidence. He had further stated that he is an ex-service man and he has been falsely implicated in the case. No article was seized from his possession. Since the evidence in this case did not warrant an acquittal under Section 232 of Code of Criminal Procedure, the appellant was directed to enter on his defence. The appellant himself was examined as DW1 and Ext.D1 and D2 were marked on his side. After considering the evidence on record, the court below found the appellant guilty under Section 55(a) of Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for one year and also to pay a fine of Rs.1,00,000/- in default to undergo simple imprisonment for six months. Aggrieved by the same, the present appeal has been preferred by the appellant - accused before the court below.
6. Heard the Counsel for the appellant and the Public Prosecutor.
7. The Counsel for the appellant submitted that in fact, no article was seized from his possession and there was a delay of nearly sixteen days in producing the article. No explanation was forthcoming from the side of the prosecution regarding the same. Further, there was no spot sample taken and it is seen from the evidence that 15 bottles of 750 ml. were seized from the possession of the appellant. But, the Chemical Analysis Report shows that fifteen samples of 180 ml. each were sent and there is no evidence to show from where it was taken etc., So, Under the circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the article seized was the same article which reached the court and the report relates to that article and that benefit must be given to the appellant and the lower court was not justified in convicting the appellant for the offence alleged.
8. On the other hand, the Public Prosecutor argued that the evidence of PWs 1 to 3 will go to show that he was found to be in possession of 15 bottles of 750 ml. XXX Rum which is intended to be given for defence personals and he was not entitled to keep so much quantity and this was proved by PWs 1 to 3. No prejudice has been caused on account of the delay as well. So, according to the Public Prosecutor, the prosecution has proved the case against the appellant beyond reasonable doubt.
9. The points that arise for consideration are;
(1) Whether the court below was justified in convicting the appellant for the offence under Section 55(a) of Abkari Act?
(2) If so, the sentence imposed is proper and legal?
Point No.1
10. The case of the prosecution as emerged from the prosecution witnesses was as follows:
On 07.09.2000 at about 5.15 p.m, while PW3 along with PW1 and others were doing patrol duty and when he reached at Thirumala, he got information that the appellant was unauthorizedly engaged in sale of foreign liquor near Pangode Military camp and immediately he went to that place at about 5.30 p.m, and saw the appellant standing there with MO2 bag in his hand near Hanuman Kovil and on seeing the police party, he tried to go away from that place and he was stopped by the Military personnel who was present there and on examination, it was revealed that he was in possession of 15 bottles of brand of Gold Castle each having capacity of 750 ml. and for defence service only and Canteen services. Thereafter, he examined the contents of one of the bottles and satisfied that it was Indian made foreign liquor and he sealed the bottles and seized the bottles and the bag as per Ext.P1 mahazar. Thereafter, he came to police station and registered Ext.P2 First Information Report as Crime No.133/2000 of Poojappura Police Station against the appellant under Section 55(a) of Abkari Act. He produced the appellant before court along with remand report. He had undertaken the investigation. He questioned the witnesses and recorded their statements. He sent a requisition before court for taking samples and also sent a forwarding note with a request to send the articles for analysis and accordingly, the samples were taken and sent for examination and Ext.P4 report obtained which shows that it contained ethyl alcohol. He completed the investigation and submitted the final report against the appellant.
11. PW2 is the independent witness. He had admitted the signature in Ext.P1 mahazar and also proved the seizure of MO1 series bottles from the possession of the appellant. PW1 is a police constable who accompanied PW3 on that date. PW3 deposed in tune with the prosecution case and that was corroborated by the evidence of PW1 as well It is seen from the seizure mahazar that what is the nature of seal used for sealing the article was not mentioned, but, only stated that it was sealed. It is also mentioned in the seizure mahazar that sample was taken and it was sealed. But, unfortunately, it will be seen from the property list that no such sample was taken and PW3 also had no case that the sample was taken from the spot and according to him, on the basis of the request made by him, sample was taken from court and it was sent from court. It will be seen from Ext.P4 Chemical Analysis Report also that 15 sample bottles containing 180 ml. each brownish liquid was sent for analysis. It was sent on 6.11.2000. Further, though the seizure was effected on 07.09.2000, it reached the court only on 22.09.2000, more than 14 days of seizure. There is no explanation forthcoming from the side of the prosecution as to who was in possession of these articles till it was produced before court without tamper proof as well.
12. In the decision reported in Sasidharan Vs. State of Kerala [2007 (1) KLT 720], this court has held that without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from the accused which had reached the hands of the Chemical Examiner in a fool proof condition. It is further observed that committing Magistrates have to take care that contemporary proceedings evidencing the drawing of sample and sending the same to the Chemical Examiner in a tamper-proof condition are recorded in the proceedings before court. Sessions Judges trying such cases also should ensure that the concerned member of the staff, who had drawn the sample and despatched the same to the Chemical Examiner duly packed and sealed under the covering letter of the Magistrate, is examined before court during trial. The Public Prosecutor in charge of the case also had a duty to file an additional witness- list for examining the thondy section clerk (property clerk) concerned so as to establish the nexus between the contraband substance and the accused.
13. So, in the absence of any evidence adduced on the side of the prosecution regarding the delay in producing the article and considering the fact that the delay has not been properly explained and spot sample was not taken and the Chemical Analysis Report relates to representative sample taken from the contraband article said to have been seized, then, it cannot be said that the prosecution has proved beyond reasonable doubt that the appellant was in possession of foreign liquor in contravention of the Abkari Act and conviction is unsustainable in law under such circumstances. These aspects were not considered by the court below before coming to the conclusion that the prosecution has proved beyond reasonable doubt that appellant was found to be in possession of Indian made foreign liquor.
14. Merely because the accused did not challenge the delay etc., and the procedure is not a ground for coming to the conclusion that the prosecution h as proved their case. There is a duty cast on the prosecution to produce the articles without unnecessary delay and also prove that the Chemical Analysis Report relates to the representative sample taken from the contraband liquid alleged to have been seized from the possession of the appellant. This has not been proved in this case. So, under the circumstances, court below was not justified in coming to the conclusion that prosecution has proved beyond reasonable doubt that the appellant had committed the offence punishable under Section 55(a) of Abkari Act and he is entitled to get acquittal of the charge levelled against him giving him the benefit of doubt. The point is answered accordingly.
15. In view of my finding on Point No.1, the sentence imposed is also illegal and the same is set aside. The point is answered accordingly.
In the result, the appellant succeeds and the appeal is allowed. The order of conviction and sentence passed by the court below against the appellant under Section 55(a) of Abkari Act are hereby set aside and the appellant is acquitted of the charge levelled against him giving him the benefit of doubt. The appellant is set at liberty. The bail bond executed by him will stand cancelled. The fine amount if any remitted by the appellant as directed by this court is directed to be returned to the appellant by the court below on making an application for that purpose before that court.
Office is directed to communicate this judgment along with the back records to the court below at the earliest.
Sd/-
K.Ramakrishnan, Judge.
Bb [True copy] P.A to Judge