The appellant was convicted by the Additional Sessions Court(Adhoc)I, Pathanamthitta, for the offence under Section 8(2)/8(1) of the Abkari Act. She was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and, in default of payment of fine, to undergo simple imprisonment for two years. Challenging the conviction and sentence so passed by the court below, the appellant has preferred this appeal. 2. Learned counsel for the appellant submits that the appellant expired after filing this appeal. The memo filed by the learned Public Prosecutor along with the report of the concerned Excise Inspector and a copy of the death certificate confirmed the death of the appellant on 14.11.2009.
3. The near relatives of the appellant did not file any application for leave to continue the appeal. Since the sentence awarded by the court below is a composite one of imprisonment and fine, this Court heard the learned counsel for the appellant and the learned Public Prosecutor and also carefully perused the records of the case.
4. The prosecution case is briefly stated as follows: PW3, the Excise Preventive Officer, Excise Range Office, Konni, and his party were on patrol at Njekkunilam in Vallikkodu Village, at about 11.30 a.m.on 18.7.1998. While so, the appellant was seen coming from the opposite side carrying a black jerrycan of 5 litre size in her right hand. Seeing the Excise Party, the appellant attempted to flee away. But, the Excise Party stopped her there. On examination, it was found that the jerrycan contained about 3 litres of arrack. Therefore, she was arrested then and there. Ext.P4 is the Arrest Memo prepared by PW3. The jerrycan containing arrack was sealed and labelled and seized under Ext.P1 Seizure Mahazar by PW3 in the presence of witnesses. Thereafter, PW3 and his party went to the Excise Range Office, Konni, with the appellant, contraband and records and entrusted them to PW4, the Excise Inspector. PW4, after collecting the necessary details of the case from PW3, registered Crime No.37 of 1998 of that Excise Range Office. Ext.P5 is the Crime and Occurrence Report thus prepared by PW4. He sent the appellant with Ext.P6 Remand Report to the court. He has prepared Ext.P7 List of Property and produced the contraband along with the same before the court. He has also submitted a requisition before the court for taking sample of the contraband and subject the same to chemical examination. Accordingly, the sample was drawn and sent for chemical analysis. Ext.P8 is the Certificate of Chemical Analysis received. MO.1 is the jerrycan containing the contraband. PW4 did not go to the place of occurrence or questioned the witnesses. PW6, the Excise Inspector, conducted the investigation of this case from 9.12.1999. He has questioned the witnesses and recorded their statements. He has completed the investigation and submitted the Final Report before the Judicial First Class Magistrate's Court-II, Pathanamthitta, alleging the offences under Sections 8 and 55 of the Abkari Act.
5. The learned Magistrate, after complying with the necessary legal formalities, committed the case to the Court of Session, Pathanamthitta, and, from there, it was made over to the Assistant Sessions Court, Pathanamthitta. Later, it was transferred to the Additional Sessions Court (Adhoc)I, Pathanamthitta.
6. The court below framed a charge against the appellant alleging the offence under Section 8(2)/8(1) of the Abkari Act. The appellant has pleaded not guilty of the charge. The prosecution has examined PWs.1 to 6 and marked Exts.P1 to P8 and MO.1 on their side. The appellant was questioned under Section 313 of Cr.P.C. She has denied all the incriminating circumstances shown against her. The defence has not adduced any evidence. The court below, after considering the matter, found the appellant guilty of the offence under Section 8(2)/8(1) of the Abkari Act and convicted her thereunder and imposed the sentence on her.
7. The appellant has raised several contentions challenging the conviction and sentence passed against her. It is the case of the prosecution that the contraband liquor in this case was seized by PW3 at about 11.30 a.m. on 18.7.1998 and produced the same before the Magistrate on that day itself. Ext.P7 is the List of Property. Along with this document, the property was produced before the court. It is also the case of the prosecution that no sample of the contraband was taken at the place of occurrence, but the entire quantity of arrack was seized and produced before the court with a requisition for taking sample and subject it to chemical analysis. Accordingly, according to the prosecution, sample was taken from the bulk at the court and sent it to the Chemical Examiner for analysis and thus obtained Ext.P8 Certificate of Chemical Analysis reporting that ethyl alcohol was detected in the sample and the sample contained 28.27% by volume of ethyl alcohol.
8. Who has taken the sample from the bulk produced before the court? No answer is forthcoming. The Property Clerk of the court was not examined. A copy of the Forwarding Note sent to the Chemical Examiner is not marked. Such a document is not seen available among the records. In fact, there is no evidence to show that the sample subjected to chemical analysis was drawn from the bulk of the contraband liquor produced by PW4 before the court.
9. This Court in Sasidharan v. State of Kerala (2007(1) KLT 720) has held as follows:
“It is true that the two independent attestors to Ext.P1 mahazar prepared by PW1 from the spot itself, have not been examined by the prosecution. One of those independent witnesses was no more and the other witness was not available. But the evidence of PWs 1 and 2 is quite credible to show that the accused was apprehended with a can allegedly containing contraband arrack. Notwithstanding the physical confirmation by PW1 of the contents in the can to be arrack by taste and smell the prosecution was not content with that identification. That is why PW4 filed the forwarding note before the court for taking sample and despatching the same for chemical examination. Indeed, the law also insists on such a course of action (see AIR 1967 SC 1550 - State of A.P. v. Madiga Boosenna & Ors. and 1970 KLT 427 Muthan Ankannithu v. State of Kerala). But there is no evidence to show that sample was taken from the can produced in court and that it was the said sample which was tested by the Chemical Examiner. The property list shows that the can which was received in court on 10-02-1998, was directed to be returned to the Excise Inspector himself for safe custody after taking sample therefrom. The said endorsement on the reverse of the property list does not prove that a sample was drawn from the can which was produced in court. The thondy clerk, who was in charge of the M.O. produced in court, was not examined nor was any proceedings prepared and produced in this case to show that sampling was done in this case. 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. There is no evidence to show that the sample, which was analysed under Ext.P5 chemical report, was the sample taken from the can allegedly seized from the accused. When the sample changed hands before reaching the Chemical Examiner the Prosecution had to necessarily examine the various persons who were in custody of the sample to prove that while in their custody the seals on the sample had not been tampered with (see AIR 1980 SC 1314 State of Rajasthan v. Daulat Ram and 1993 (2) KLT 550 SC - Valsala v. State of Kerala). 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. For this, there is no evidence.”
In the case on hand, as already found, there is absolutely no evidence to show that the sample sent for chemical analysis was drawn from the contraband seized. This is fatal to the prosecution case.
10. PW3 is the Detecting Officer. PW5 is an Excise Guard who was also among the Excise Party at the time of detection of the offence. Both these witnesses, by and large, supported the prosecution case. But, two independent witnesses, viz. PWs.1 and 2 cited and examined in this case did not support the prosecution case. They were declared hostile to the prosecution. PW4 produced the appellant, contraband and the records before the court. He does not have a case that he has conducted any investigation in this case. He specifically admitted that he has not questioned any witness in this case. PW6 is the Investigating Officer. His evidence shows that he has conducted investigation only from 9.12.1999. He stated that he has conducted investigation by questioning the witnesses and recording their statements. The connected records produced along with the Final Report would go to show that all the witnesses were questioned and recorded their statement by PW6. The occurrence allegedly took place on 18.7.1998. What was the reason for occurring such an inordinate delay in conducting the investigation of the case? It took about 1 year and 5 months for conducting investigation by questioning the witnesses. The prosecution did not offer any explanation for occurring such an inordinate delay in conducting investigation of the case. Section 50 of the Abkari Act, in unambiguous terms, mandates that every investigation into the offence under this Act shall be completed without unnecessary delay. And as soon as investigation is completed, a report shall be forwarded to the concerned Magistrate. This is grossly violated in this case. PW6 conducted investigation only from 9.12.1999 and he has filed the Final Report before the court only on 3.11.2000. These facts, no doubt, throw considerable shadow of doubt on the prosecution case. The appellant, at least, is entitled to the benefit of doubt in this case.
11. For the foregoing reasons, the conviction and sentence passed against the appellant are liable to be set aside.
In the result, the conviction and sentence passed against the appellant are set aside. The bail bond executed by her shall stand cancelled. Since the appellant expired during the pendency of this appeal, no further orders are required.
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ks. BABU MATHEW P. JOSEPH JUDGE True copy P.S.To Judge