The Judgment of the Court was delivered by
V. Ramkumar, J.:— The sole accused in S.C 788 on the file of the Additional Sessions Court, Fast Track I, Thiruvananthapuram for an offence punishable under S. 55(a) of the Abkari Act challenges the conviction entered and the sentence passed against him by the court below for the aforesaid offence.
2. The case of the prosecution is that on 9.2.1998 at 5 p.m the accused was found in possession of 2 ½ litres of illicit arrack. The facts as unravelled by the prosecution evidence can be summarised as follows:
On 9.2.1998 at 5 p.m, PW1 - Excise Preventive Officer attached to the Enforcement and Anti Narcotic Squad, Thiruvananthapuram and his party including PW2 (an Excise Guard) were proceeding on patrol duty. When they reached near Murukkumpuzha railway gate in Panachamoodu - Murukkumpuzha kadavu road, they saw the accused coming from opposite direction with a black can of 2 ½ liters capacity. On seeing the Excise party, the accused became perplexed and attempted to make good his escape. He was however, restrained by the Excise party and the can found in his possession was seized. On examining the contents of the can, it was found to contain illicit arrack. The identity of the contents was confirmed by PW1 through smell and taste. Ext. P1 contemporary mahazar was prepared from the spot itself. CWs. 1 and 2 were the independent witnesses to the said mahazar. Of them, CW1 was dead and CW2 was not available in the station and hence not examined before court. The can and the seized documents were produced before P.W 3 - Excise Inspector, Kazhakuttom, who registered Ext. P4 crime and occurrence report. The accused was thereafter produced before court along with the remand report. During the course of investigation, PW3 filed a requisition before the committal court requesting the court to take sample from the can and forward the same for chemical analysis. Ext. P5 report of chemical analysis shows that the sample contained 26.02 per cent by volume of ethyl alcohol. A complaint was filed by PW4, the successor Excise Inspector placing the accused for trial for an offence punishable under S. 55(a) of the Abkari Act.
3. After the close of the prosecution evidence, the accused was questioned under S. 313(1)(b) of Cr. P.C with regard to the incriminating circumstances appearing against him in the evidence for the prosecution. He denied those circumstances and maintained his innocence. He stated that the real offender, who was carrying the contraband liquor had successfully made good his escape and that he was falsely implicated in this case.
4. Since the trial Judge did not find this a fit case for recording an order of acquittal under S. 232 of 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 evidence.
5. The learned Additional Sessions Judge, after trial, as per judgment dated 7.11.2005, found the appellant guilty of the offence and sentenced him to rigorous imprisonment for 1 ½ years and to pay a fine of Rs. 1 lakh and on default of fine, to undergo rigorous imprisonment for six months. It is the said judgment which is assailed in this appeal.
6. I heard Advocate Smt. Sangeetha Lakshmana, the learned counsel who defended the appellant on State Brief and Advocate Shri. Sivakumar, the learned Public Prosecutor, who defended the State.
7. As mentioned earlier, P.Ws 1 and 2 are the members of Excise party, who detected the offence while on patrol duty. PW3 is the Excise Inspector, who registered the crime and produced the accused and the seizure documents before court. PW4 is the Excise Inspector, who filed the complaint before court.
8. 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 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 10.2.1998, 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 (1980) 3 SCC 303 : 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.
9. There is yet another infirmity in the evidence. While according to PWs 1 and 2 and the recitals in Ext. P1 mahazar, the seized can was sealed and labelled, the property list does not show that the can which was produced in court was sealed. PW4 has admitted that in Ext. P4 filed by him in court there is no mention that the can which was seized was either sealed or labelled. M.O.I can which was produced in court from the custody of PW4 was an empty can on which there was no seal or label at all. Every such can will look alike and it is really surprising that PWs. 1 and 2 who were testifying before court after 5 years of detection had no difficulty to identify M.O.I as the can which was allegedly seized from the appellant. It is not possible to accept the identification of the can, by such officers who are not possessed of super-human powers of recollection.
10. It is on account of the aforementioned deficiencies in the evidence that the Prosecution has to fail in this case. 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.
11. The result of the foregoing discussion is that for want of the link evidence connecting the accused with the contraband liquor and the sample which was tested under Ext. P5 chemical report, the prosecution has failed to prove the case beyond reasonable doubt. The conviction entered by the court below overlooking the above vital aspect of the matter, cannot be sustained. Accordingly, the appellant is acquitted of the offence punishable under S. 55(a) of the Abkari Act and shall be set at liberty. He shall be released from prison forthwith unless his continued detention is needed in any other case.
12. The Registry shall issue a circular for the guidance of all Sessions Judges, Assistant Sessions Judges and Magistrates appraising them of the need for ensuring proof of the proper link evidence in cases under the Abkari Act.
13. Copies of such circular shall be forwarded to the Director General of Prosecution and to all District Collectors so as to bring the same to the notice of Public Prosecutors.
14. In the result, this appeal is allowed and the conviction and sentence entered against the appellant are set aside as above.