BY AD v. SRI.GEO PAUL

The appellants along with another person, Sri.Titus, were charged in S.C.No.1708 of 2001 before the Additional Sessions Judge for the trial of Abkari Cases, Neyyattinkara for an offence punishable under Section 55(g) of the Abarki Act,

1077. After trial, the 3rd accused was acquitted. Accused Nos.1 and 2 were convicted and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rs.1,00,000/- each. Aggrieved by the same, they have preferred this appeal.

3. The accusation against the appellants is the following: At about 2.00 p.m. on 13.10.1999 the appellants along with Cr.Appeal No.869 of 2007 3 the 3rd accused were found brewing arrack at a place called Paramadankonam, situated at the southern side of Nettukaltheri Open Jail Annex. When PW4, the Sub Inspector of Police, Neyyar Dam Police Station, along with his colleagues, approached them, the 3rd accused took to his heels. They could apprehend the appellants. 40 litres of wash, 500 ml. of arrack and the utensils for brewing were seized under Ext.P1 mahazar. The appellants were arrested. Coming back to the police station, PW4 registered a crime as per Ext.P2. PW4 himself has undertaken the investigation and laid the charge sheet.

4. On committal by the Judicial Magistrate of the First Class, Kattakkada, case was made over by the Sessions Court to the Court of the Additional Sessions Judge for trial of Abkari Act cases, Neyyattinkara for trial and disposal. On denying the charge by the accused, trial was held. PWs.1 to 5 were examined and Exts.P1 to P12 were marked. MOs.1 to 6 were identified. After closing the prosecution evidence, the accused were examined under Section 313(1)(b) of the Code. The Cr.Appeal No.869 of 2007 4 accused denied the incriminating circumstances and maintained that they are innocent. On the side of the accused, Exts.D1 to D3 were marked. No witness was examined. After hearing both sides, the trial court found accused Nos.1 and 2 guilty and the 3rd accused not guilty.

5. Heard the learned counsel for the appellants and the learned Senior Public Prosecutor.

6. The conviction of the appellants is assailed on the grounds that in the absence of independent evidence, the prosecution case stands not proved; having PW4 himself detected the offence, investigated into and filed final report, great prejudice was caused to the appellants, especially in the absence of any independent evidence; the discrepancy in the sampling that surfaced in evidence makes it impossible to believe that the sample examined in this case is the sample prepared by PW4 at the time of detection; and non- examination of the Chemical Examiner as well as the police personnel who took the samples from the court to the Laboratory makes the whole prosecution case unreliable. Cr.Appeal No.869 of 2007 5

7. PW4, who was the Sub Inspector of Police, Neyyar Dam Police Station during the relevant period. He along with his colleagues, while on patrol duty, got the information regarding illegal brewing of arrack and accordingly, they reached the place of occurrence. Besides PW4, PW3, a Police Constable, who was in the patrol party, deposed before the court regarding the incident. They deposed about the detection, arrest of the accused and seizure of the contraband cogently.

8. It was on 13.10.1999. Immediately on seizure and arrest, they came back and registered a crime vide Ext.P2. On the very next day, i.e., 14.10.1999, the contraband and the articles seized from the possession of the accused were produced before the court. PWs.1 and 2 are the independent witnesses, who purportedly signed Ext.P1 and witnessed the seizure and arrest. Both of them deposed in court denying even their signatures in Ext.P1. They denied having seen the arrest of the accused and seizure of the articles. Although cross-examined, nothing to support the case of the prosecution could be brought out from them by the learned Cr.Appeal No.869 of 2007 6 Public Prosecutor. Thus, the evidence of PWs.1 and 2 does not render any assistance to the prosecution case.

9. In the above context, the learned counsel for the appellants would submit that when there is absolutely no independent evidence, the evidence of PWs.3 and 4 cannot be based on to enter a conviction of the appellants, particularly in the light of the inconsistency in regard to the sampling of the contraband and examination of the same in the Laboratory. The inconsistency found with respect to the sampling and also the difference in the dates mentioned in Ext.P6, the report of Chemical Examiner and Ext.P10, the letter of the Magistrate forwarding the samples for chemical examination, are highlighted. Ext.P6 mentions that the samples were received in the Laboratory vide letter dated

22.09.1999; whereas the letter, Ext.P10 by which the sample was forwarded is dated 16.11.1999. Those facts are narrated by the learned trial Judge in paragraph 14 of the impugned judgment, which reads,- “14. PW5 is the Thondy Section Clerk of the concerned Magistrate's Court who deposed that under Ext.P5, he Cr.Appeal No.869 of 2007 7 had received the thondy items upon verification that he had verified the tamper proof nature of the seal of MO1 and sample bottle of wash and entered in the thondy Register in page 3 and 4, as T.321/99 in his hand, which being identified was marked as Ext.P8. According to him, item No.2 of Ext.P5 was forwarded to the Chemical Examiner as it is, as it was produced in a tamper proof condition. According to him, he had forwarded those bottles in a tamper proof condition that upon the direction of the learned Magistrate, from out of item No.1 of Ext.P5, he had extracted 180 ml. of liquid that he had sealed it in accordance with the law and affixed metal seal of the Court, that item No.2 of Ext.P5 was forwarded as it is and he had affixed metal seal of the Court also upon it to make it doubly safe, that both the bottles were made tamper proof. He would further depose that there was seal of the Police in wax affixed on the Forwarding Note, and the same was considered by him as the specimen seal, that he forwarded the sample bottles on 16.11.1999 as is seen in the Chemical Report and he had not forwarded it prior to that date in the cross-examination this Thondy Section Clerk admitted that there is no written order to take sample, and there is no endorsement in Ext.P8 showing that he had extracted arrack sample. It is in the circumstances very interesting to note that the date of detection as alleged by the prosecution is on

13.10.1999. But Ext.P6 Chemical Report would say that Cr.Appeal No.869 of 2007 8 the covering letter of the learned Magistrate, while forwarding the sample bottle was dated 22.09.1999. In the chief-examination itself the Thondy Section Clerk deposed that on 22.09.1999, he entrusted the sample bottle with P.C. 8127 for delivering it to the Chemical Examiner. This is a serious mistake, which has never been attempted to be clarified or explained. The Chemical Report shows the same date namely,

22.09.1999 as the date of the Covering Letter. But upon summons, Covering Letter of the learned Magistrate has been produced in the Court which was marked as Ext.P9, which shows that it was dated

16.11.1999, and not 22.9.1999.”

10. The learned Sessions Judge explained away the said discrepancy with the help of Exts.P9 to P11, which were brought on record on the motion of the Sessions Judge. When Ext.P10 forwarding letter sent by the learned Magistrate carried the date 16.11.1999, the date contained in Ext.P6 was held to be a clerical error and thus the discrepancy was clarified. However, that alone is not the inconsistency appeared in evidence.

11. Ext.P8 is a copy of the property register, where the details of the properties produced in this case were entered. Cr.Appeal No.869 of 2007 9 Item No.1 is the bottle containing 500 ml. of arrack and item No.2 is the bottle containing 750 ml. of wash. The samples forwarded as per Ext.P11 forwarding note are one bottle containing 750 ml. of wash and another bottle containing 180 ml. of arrack. PW5, the Property Clerk, explained before the court that it was he who drew the sample from the arrack produced by PW4 before the court. Except his oral testimony, there is nothing on record to show that he was either authorised to draw such a sample or that such sample was drawn under the supervision and presence of the learned Magistrate. In the absence of any documentary evidence, the oral testimony of PW5 alone is insufficient to find that the sample from the arrack allegedly seized from the possession of the appellants was duly and properly drawn.

12. As stated, it was as per Ext.P11 forwarding note, the samples were sent for examination to the Chemical Examiners' Laboratory. It does not contain the sample impression of the seal. PW5 deposed that he verified the samples and the articles produced in the case with the Cr.Appeal No.869 of 2007 10 description in the property list and also the sample seal provided. When Ext.P11 does not carry the specimen impression of the seal, purportedly affixed on items No. 1 and 2, which are the contraband, that creates a doubt about the identity of the said articles.

13. Further, the discrepancy on the dates between Exts.P6 and P10 are not properly explained. The Chemical Examiner, who prepared Ext.P6, is not examined. Of course, Ext.P6 can be admitted in evidence without examination of the Chemical Examiner in the light of the provisions of Section 293 of the Code. But when there are such dependencies concerning dates, non-examination of the Chemical Examiner becomes fatal to the prosecution. Similarly, the Police Constable, who took the sample from the court of the Judicial Magistrate of the First Class, Kattakkada to the Laboratory, also was not examined. PW5 asserted in court that the samples were forwarded to the Laboratory on 22.09.1999. Of course, when the said version stands out from the entries in the documents, the same may be incorrect. But such an Cr.Appeal No.869 of 2007 11 inference is not enough to find that the sample was duly prepared and forwarded to the Laboratory. When the said circumstances create doubts regarding the genuineness of the sample prepared and forwarded for examination, certainly the benefit of that doubt has to go in favour of the accused.

14. In the above context, it is relevant to note that the entire process of detection, investigation and filing of the final report were done by PW4. There is no bar created by law to do all those things by the same official. But when there arises doubt about the case of the prosecution from the evidence on record and there is no independent evidence, the said aspect certainly causes prejudice to the accused. The conviction based solely on the evidence of the official witnesses becomes legally untenable in the aforementioned circumstances. The conviction not only of the 1st appellant, but also the 2nd appellant is incorrect and liable to be set aside. Accordingly, this appeal is allowed. Sd/- P.G. AJITHKUMAR, JUDGE