This appeal is directed against the judgment of conviction in S.C.No.105/2000 dated 17.2.2004 of the Court of Session, Kasaragod. The appellant along with the second accused were indicted for offences punishable under section 57(A) of the Abkari Act (for short 'the Act') and section 22 of the Narcotic Drugs and Psychotropic Substances Act (for short 'the NDPS Act'). Pending trial, the second accused passed away and the charge against him was abated. Thus, the appellant alone faced the trial and he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.10,000/- with default term of imprisonment for a period of six months, for the offence punishable under section 57(A) of the Abkari Act and to pay a fine of Rs.5,000/- with a default term of rigorous imprisonment for three months for the offence punishable under section 22 of the NDPS Act. 2. The case of prosecution, in brief, was as follows:-
The appellant was the licensee in respect of toddy shop No.47 in Kasaragod Range and the second accused was the salesman attached to the said shop. On 13.11.1998, PW1, the then Sub Inspector of Police, Kasaragod Police Station got reliable information regarding the sale of toddy adulterated with some noxious substance in the said shop and thereupon, he reached there along with police party. In the presence of the second accused, he collected 700 ml of toddy each in three bottles each having a capacity of 750 ml., as samples and they along with the residue were seized under Ext.P1 mahazar. On his return to the police station, PW1 registered Ext.P2 FIR against the appellant and the other accused. One of the sample bottles along with a forwarding note was sent to the Forensic Science Laboratory, Thiruvananthapuram for analysis. On obtaining Ext.P5 FSL report revealing that the sample contained diazepam, a psychotropic substance, Ext.P6 report was submitted to the court adding the offence under section 22 of the NDPS Act. PW5, then took over the investigation of the crime and arrested the appellant and seized Ext.P9 licence under Ext.P8 mahazar. The second accused was also arrested by him. PW3 who is the successor in office of PW5 completed the investigation and laid the charge against the appellant and the second accused for the offences punishable under Section 57(A) of the Abkari Act and Section 22 of the NDPS Act.
3. As noticed hereinbefore, pending the trial, the second accused passed away and consequently, the charge against him got abated and therefore, charge was framed only against the appellant. The appellant pleaded not guilty when the charge was read over and explained to him and claimed to be tried. To substantiate the case of the prosecution, PWs 1 to 5 were examined and Exts.P1 to P11(a) were got marked. After the closure of the prosecution evidence, the appellant herein was examined under section 313 of the Code of Criminal Procedure (for short 'the Cr.P.C.') and he denied all the incriminating circumstances put to him. Upon finding that the appellant was not entitled to get an acquittal under section 232 Cr.P.C., he was asked to enter on his defence. However, no defence evidence was adduced. After the careful analysis of the evidence, the learned Sessions Judge found that the sample of toddy alleged to have been collected by PW1 from the aforesaid shop was adulterated with diazepam, a psychotropic substance and consequently, found the appellant guilty under section 57(A) of the Abkari Act and under section 22 of the NDPS Act and convicted him thereunder and sentenced as aforesaid. This appeal is filed against the said judgment of conviction.
4. I have hard the learned counsel for the appellant as also the learned Public Prosecutor.
5. The learned counsel for the appellant contended that the search and seizure were not conducted in tune with the procedures prescribed under section 36 of the Abkari Act which in turn makes the provisions of the Cr.P.C applicable in such case. It is contended that though section 36 mandates calling of at least 2 persons, neither of whom is an Abkari, Police or Village Officer, to attend and witness the search, it was not complied with. Though, Ext.P1 mahazar was witnessed by two witnesses, they were not examined by the prosecution. That apart, Ext.P1 would reveal that only one among them is an independent witness in terms of the provisions under section 36 of the Abkari Act and the second witness cited in Ext.P2 was a police constable then attached to A.R. Camp, Kasaragod. It is also contended that going by the prosecution case as also evident from Ext.P1, the search was conducted and the samples were collected on 13.11.1998. After bringing them to the police station, forwarding note was prepared only on 17.11.1998 and it was, in fact, sent to the FSL, Thiruvananthapuram only on 18.11.1998. No explanation whatsoever was offered for the delay to establish that the samples collected were kept in tact and they were under safe custody. The learned Public Prosecutor contended that no illegality or inconformity could be attributed to the search and seizure and the collected samples were promptly sent to the FSL, Thiruvananthapuram strictly in accordance with the relevant provision and Ext.P5 report would reveal that the samples collected from the shop contained diazepam, a psychotropic substance. It is further contended by the learned Public Prosecutor that in the said circumstances, the evidence of PWs 1 to 3 and 5 and the evidence of PW4 with Ext.P4 FSL report would conclusively prove the aforesaid offences and therefore, the conviction entered into and sentence imposed on the appellant call for no appellate interference.
6. I will now examine the evidence in this case. As noticed hereinbefore, the oral evidence consisted of evidence of PWs 1 to 5. PW1 was the then Sub Inspector of Police, Kasaragod Police Station and he would depose that getting reliable information regarding the sale of adulterated toddy in T.S.No.47 of Kasaragod Range, he along with police party reached there. He deposed that he collected samples of 700 ml of toddy in three bottles each having a capacity of 750 ml. He would further depose that those bottles were sealed with labels separately from the spot and seized into custody under Ext.P1 mahazar. On his return to the police station, he registered Ext.P2 FIR against the appellant and the other accused. He would also depose that one of the sample bottles along with Ext.P3 forwarding note was sent to the FSL,
report to the court adding section 22 of the NDPS Act against the accused based on the certification thereunder that the samples analysed contained diazepom, a psychotropic substance. However, while being cross examined, he would depose that in Ext.P1 as also in Ext.P2 FIR, nothing was mentioned about the sealing or labelling of the bottles in which the samples were collected from T.S.No.47 of Kasaragod Range to which the appellant was the licensee. During the cross examination, he would also depose that though two residential houses were seen near to the place of occurrence viz., about 10 meters and 12 meters from the shop, at the time of conducting the search, none from the said houses were called to attend and witness the search. He did not assign any reason therefor. It is also deposed during the cross examination that the samples collected were sent to the FSL, Thiruvananthapuram only on 18.11.1998 and there is no specific reason for the delay in sending the sample to the laboratory. Evidently, in Ext.P1 mahazar, one independent witness by name Kandankunji and one U.Kumaran, who was the then police constable attached to the AR Camp, Kasaragod were signed as witnesses. In the label alleged to have been affixed with sample, the salesman was not a signatory. There was discussion of oral testimonies of PWs 2 to 5 in the judgment. However, it is evident that PW2 was the Sub Inspector of Police, Kasaragod Police Station during the period when Ext.P5 report reached the police station. Ext.P5 report carries the finding regarding the presence of diazepam in the sample analysed. It was he who submitted Ext.P6 report before the court adding section 22 of the NDPS Act. He would depose that except the submission of Ext.P6 report before the court, he had not conducted any investigation in the crime. After completing the investigation, PW3 filed the final report before the court. PW4 was the Scientific Assistant attached to the Forensic Science Laboratory, Thiruvananthapuram who received the sample bottles in a sealed parcel along with Ext.P3 forwarding note. She would depose that diazepam was detected in the sample received for analysis and analysed by her. She had also stated that it contained 4.6% volume of Ethyl alcohol. She would depose that she had issued Ext.P5 report along with Ext.P5(a) covering letter. On being questioned as to whether the label attached to the sample containing the name of one Peethambaran as salesman of the toddy shop, she would depose that whatever was stated in the label had been recorded in the report. She would also depose that the first four tests mentioned in the report are presumptive tests or screening tests and thereafter infrared test and chromotography tests for confirming the presence of diazepam in the sample. She also deposed that she had not determined diazepam in the present sample. Going by the forwarding note, she was prepared only to test whether the samples were adulterated. PW5 conducted the investigation of the aforesaid crime from 7.2.1999. He would depose that he inspected the place of occurrence and prepared Ext.P1 mahazar. He would also depose that the appellant was known to him and he arrested him on 10.2.1999. He would depose that on 15.1.1999, the appellant produced the licence relating TS No. 47 of Kasargod Range before him and it was seized under Ext.P8 mahazar as Ext.P9. He would also depose that in Ext.P7, the existence of two residential buildings near the shop in question was shown. As noticed hereinbefore, in the impugned judgment, apart from the discussion of the evidence of PW1 and the documentary evidence, there was no discussion of the oral testimonies of PWs 2 to 5 except to the extent that PW5 deposed that Ext.P9 licence was produced by the accused/appellant and it was seized by him under Ext.P8 mahazar and that the culprit had asserted that all the tests described by the Narcotic Control Bureau for determining the psychotropic substance had been followed. The learned Sessions Judge formulated the following points for consideration:-
1. Whether the sample of toddy alleged to have been collected by PW1 from the toddy shop, T.S.No.47 in Nellikkunnu Neach, in Adkath Bayal, on the date stated, was adulterated with any, noxious or psychotropic substance?
2. Was A1 the licensee of the above toddy shop, on the date of inspection and collection of samples by PW1, as alleged by the prosecution?
3. What is the offence, if any, proved against the accused?
4. Sentence, if any, to be awarded to the accused?
7. The learned Sessions Judge found that though the report of PW4 was challenged, PW4 deposed that she had conducted all the tests prescribed by the Narcotic Control Bureau over the sample and such a test confirmed that the samples contained diazepam, a Psychotropic substance. As noticed hereinbefore, without discussing the evidence of PW4 with her evidence, Ext.P5 report was accepted by the learned Sessions Judge to arrive at the finding that diazepam is a psychotropic substance and the same which is not a constituent of a toddy contained in the sample of toddy analysed and thereupon, discarding the suggestion that what was analysed was not the sample collected from the toddy shop, found that the sample collected and analysed contained diazepam. Consequently, it was found that the sample of toddy collected by PW2 from the T.S.No.47 was adulterated with diazepam, a psychotropic substance.
8. The second point formulated for consideration was whether the appellant was the licensee of the toddy shop No.47 on the date on which samples were collected for inspection, as alleged by the prosecution. The evidence of PW1 was believed by the learned Sessions Judge to find that upon receiving reliable information that adulterated toddy was being sold from T.S.No.47 in Nellikunnu in Adkathbayal Village in Kasargod Taluk, he reached there along with police party and in the presence of the second accused, the salesman, who died much prior to the trial, he collected 700 ml of toddy as sample, in three bottles each having capacity of 750 ml. The evidence of PW1 that one of the sample bottles contained 700 ml toddy was sent to FSL, Thiruvananthapuram along with Ext.P3 forwarding note and it was received from the laboratory along with Ext.P5 report was taken into account for the purpose of arriving at the conclusion that the samples collected were sent for analysis. Though, Ext.P5 report as also in mahazar it was found that one among the attestors was a police constable attached to the A.R Camp, Kasaragod and that the second accused, who was the salesman at the relevant point of time in the toddy shop was not a signatory to that and therefore there was infraction of the mandate to collect the samples in the presence of two witnesses the learned Sessions Judge found that the circumstances highlighted by the defence would not in any way affect the creditworthiness of the oral testimony of PW1, the police officer. It was found that, PW1 being a Sub Inspector of police is an abkari officer as defined under the Abkari Act and therefore, empowered to inspect a licenced toddy shop and collect samples from there as envisaged under section 32 of the Abkari Act. It was further found that in exercising duty so vested with him as an abkari officer with respect to a licenced shop, he need not follow the procedures governing a search and that being so, there could be no statutory insistence that the collection of samples should have been made by him in the presence of two independent witnesses. It was also found that, the fact that one of the attestors in Ext.P1 mahazar was a Peon attached to A.R Camp, Kasaragod and that none from the two residential houses close to the shop, were called at the time of collecting the samples to witness it, would not in any way make the search and seizure invalid. It was found that since PW1 conducted the search upon receiving a reliable information that toddy mixed with some noxious substance was being sold from the shop he had exercised only his power as an abkari officer to collect the samples from the shops and further that the evidence of PW1 is conclusive enough and it is reliable to prove the collection of the samples from the shop in question. It was found that corroboration is not a rule of law and it is only one of prudence and that whether corroboration is required for accepting the evidence of witness at a particular point has to be analysed on the totality of the facts involved in any particular case. Viewed in that manner it was found that the challenge raised against the evidence of PW1 regarding the inspection and collection of samples as devoid of any merit and that the prosecution had succeeded in proving in Ext.P1 that the samples were collected from T.S. No.47 on the date and time alleged, based on the aforementioned information.
9. The delay in sending the samples for analysis was one of the grounds canvassed by the appellant to attack the credibility of the seizure. Evidently, these samples were taken by PW1 and as per Ext.P1 the samples were collected from the shop on 13.11.1998. Though it was found that after collecting the sample it was not forwarded without delay for analysis the explanation offered by PW1 that delay had occurred only on account of the dearth of police personnels was accepted. It was found that on account of the said delay no prejudice was caused to the appellant/accused. It was further found that nothing was brought out to show that the sample was not in proper custody till it reached the laboratory. In view of Ext.P5 report, it was found that the delay occurred in the case on hand, got no impact on the analysis of the sample. In the said circumstances, it was found that on account of the delay no prejudice was caused to the appellant /accused. In this case, the defence of the appellant that he was not the licencee of T.S.No.47 at the relevant point of time from where samples were collected by PW1, was found against the appellant in the light of the evidence of PW5 that it was the appellant who produced Ext.P9 licence before him and the same was seized under Ext.P8 mahazar. Ext.P9 licence would reveal that during the years 1998-1999, he was the licensee of the said shop. In the light of the provisions under section 64 of the Abkari Act, it was held that the Court had to draw presumption against the licencee regarding the culpability of the offence and therefore, it was for the appellant to establish that he had taken all due and reasonable precaution to prevent the sale of adulterated toddy mixed with noxious substance in his licenced shop. It was found that the appellant had failed to rebut the presumption available under section 34 and therefore, the irresistible conclusion which could be drawn was that the sale of adulterated toddy mixed with noxious substance in his licenced shop was with his knowledge. In that view of the matter, it was held that prosecution had succeeded in proving that toddy mixed with diazepam, a Psychotropic substance was exhibited for sale in T.S.47 and it was sold to customers and therefore, being the licensee, the appellant herein is guilty of selling adulterated toddy with noxious substance in his licenced shop. It was based on such conclusion that the appellant herein was found guilty and consequently convicted and sentenced as aforesaid.
I have already adverted to the contentions raised by the learned counsel for the appellant. As already noticed, the core contention of the appellant is that the search and seizure were not conducted in tune with the statutory mandate that independent witnesses, at least 2 persons neither of whom is an Abkari, Police or Village Officer should be called upon to witness the search. Though, the learned Sessions Judge found that since the search in question was conducted in the shop belonging to the appellant, namely T.S. No.47 of Kasaragod Range, based on a reliable information obtained by PW1 the procedures contemplated for search and seizure were not to be followed I do not find any provision of law in the Abkari Act which would lend support to the said conclusion and finding. On the other hand, a bare perusal of section 36 of the Abkari Act would reveal that search under the provisions of the Act should be made in accordance with the provisions of Cr.P.C and the proviso thereunder makes it mandatory that persons should be called upon to attend and witness the search and such persons must include, at least 2 persons neither of whom is an Abkari, Police or Village Officer. True that, in certain cases where despite the earnest endeavour to find independent witnesses, such independent witnesses could not be found out or if the independent witnesses available had expressed his willingness to attend and witness the search it would not be possible to comply strictly with the proviso to section 36 of the Abkari Act. In such circumstances, owing to the absence of the independent witnesses, a search could not be said to be vitiated. In this case, there is no such case for the prosecution. In fact, Ext.P1 itself would reveal that one among the attestors therein is an independent witness. There is absolute absence of any explanation for the prosecution as to why he was not examined. That apart, no explanation is forthcoming as to why despite the statutory interdiction for calling a witness, who is an Abkari, Police or Village Officer as the second attestor to Ext.P1 mahazar a police constable, then attached to A.R Camp, Kasaragod was called. It is evident from Exts.P1 and P5 that the said attestor by name U.Kumaran was a police constable with ARPC No.1149 and he was then attached to A.R Camp, Kasaragod. When that be so, the finding of the learned Sessions Judge that he was only a Peon attached to the A.R Camp cannot be said to be factually correct. In the said circumstances, he could not have been cited as an independent witness to Ext.P1 mahazar. Whatever that be, it is a fact that neither the independent witness who was available viz., Kandamkunji nor U.Kumaran, the other alleged independent witness, who was then a police constable attached to A.R. Camp, were examined to prove Ext.P1 mahazar. When witnesses, who attested the mahazar were available, for the non-examination of such attestors the prosecution was bound to give explanation. In this case, despite the availability of such witnesses who are signatories to Ext.P1 mahazar, prosecution had chosen only to adduce evidence regarding preparation of Ext.P1 mahazar only through PW1. This will assume relevance in the following context. Going by the prosecution case, as is obvious from Ext.P1, the samples were collected from the aforesaid shop on 13.11.1998. The evidence of PW1 would further show that though Ext.P3 forwarding letter was prepared only on 17.11.1998 and further that despite the preparation of Ext.P3 forwarding letter on 17.11.1998 the sample was sent to Forensic Science Laboratory, Thiruvananthapuram only on 18.11.1998. PW1 was questioned about the seal by the defence to prove that there was no evidence regarding the fact that either prior to the production of the contraband article to the police station or thereafter till it was forwarded to the FSL, Thiruvananthapuram it was kept in safe custody and was in tact. In the said context, the decision of this Court in Dominic v. State of Kerala reported in 1989 (1) KLT 607 assumes relevance. In the said decision, based on paragraph 34 of the Kerala Excise Manual, it was held that seizure should be reported to the competent court forthwith and request made for sending the samples for analysis also have to be followed. Paragraph 34 of the Kerala Excise Manual reads thus:-
"34. Officers may be arrested and contraband liquor, vehicles etc. seized without warrant :-
(1) Any Abkari Officer Department may arrest without warrant in any public thorough fare or open place other than a dwelling house, any person found committing an offence punishable under this Act, and in any such thorough fare or public place may-
(a) Seize and detain
(i) any liquor or intoxicating drug;
(ii) any materials, still, utensils, implement or apparatus;
(iii) any receptacle or package or covering; and
(iv) any animal, cart, vessel or other conveyance, which he has reason to believe to be liable to confiscation under this Act.
(b) search any person, animal, cart, vessel or other conveyance, package, receptacle or covering upon whom or in or upon which he may have reasonable cause to suspect any such liquor or intoxicating drug to be, or to be concealed.
(2) The provision of the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), shall apply in so far as they are not inconsistent with the provisions of this Act, to all arrests searches and seizures made under this Act."
Going by the provisions as also going by the decision each set of samples should be sealed and marked with the same number and the particulars of which should be entered into the appropriate forum in the contraband register. The evidence of PW1 would reveal that for the delay in sending the samples collected on 13.11.1998 he offered the explanation that it occurred due to the dearth of police personnels. The aforesaid explanation is not sufficient to arrive at the conclusion that the sample allegedly seized from the appellant's toddy shop was kept in tact in the safe custody. More importantly, there is nothing on record which would establish that after conducting search, the samples were seized and they were labelled after putting the seal in tune with the statutory mandate. In fact, that alone is the guarantee that could be offered to ensure that it was the seized article which was forwarded for analysis to the laboratory. True that in this case, PW4 would depose that the seal and label were found in tact. It would only guarantee that nothing untoward happened in between 18.11.1998 and the date till it reached the laboratory. I have already taken note of the contentions raised by the appellant that the independent witnesses available for the seizure of the article were not examined. The prosecution cannot be heard to contend that there is no statutory insistence for calling independent witnesses for the search and seizure. In fact, such a mandate is there under section 36 of the Abkari Act. There is also no case for the prosecution that despite earnest efforts, no independent witnesses could be obtained and in fact, it is a case where independent witnesses are available and the attestation was obtained on the seizure mahazar from two witnesses. True that one of them was a Police Constable then attached to AR Camp, Kasaragod. No explanation has been offered by the prosecution as to why they were not examined. They are the only witnesses who allegedly witnessed seizure of article from T.S.No.47. They were material witnesses. In such circumstances, to ensure that it is the article that was seized from T.S.No.47, those attesting witnesses should have been examined. Their non-examination is to be viewed in the light of the delay in sending the sample to the laboratory and also the case of the appellant that no such seizure was actually effected from T.S.No.47. In such circumstances, the only presumption which could be gathered legally from the failure of the prosecution to examine the witnesses is that had they been examined they would not have supported the prosecution. These lapses were not seriously taken note of by the learned Sessions Judge. As noticed hereinbefore, the failure was explained by assigning the reason that the search was conducted on obtaining a reliable information that in T.S.No.47, sale of toddy mixed with some noxious substance was going on. In that context, it is to be noted that even in respect of that allegation, no details have been brought in evidence. Who gave the information and who recorded the factum of receipt of information, if at all it was recorded, are not brought to light. Even if it is taken that such a seizure was effected on obtaining such a piece of information, that by itself, is not a reason for deviating from the statutory mandate under section 36 of the Abkari Act. These serious lapses are sufficient to grant benefit of doubt in favour of the appellant herein. Though the evidence of PW4 together with Ext.P5 report would reveal that the sample contained diazepam which is a psychotropic substance, the failure to comply with the procedures in the matter of sealing and labelling immediately after the seizure of article and delay in the matter of sending the sample together with the failure on the part of the prosecution to examine the attesting witnesses to Ext.P1 seizure mahazar are definitely matters which would enable the appellant to seek for benefit of doubt. In such circumstances, the judgment of conviction entered against the appellant cannot be sustained as it was rendered without giving due regard to those crucial aspects. In the circumstances, this appeal is allowed. The impugned judgment in S.C.No.105 of 2000 on the files of the Court of Session, Kasaragod is set aside. The bail bond of the appellant stands cancelled.
Sd/-
C.T. RAVIKUMAR (JUDGE) dlk/spc