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2012 DIGILAW 899 (KER)

Raju v. State of Kerala

2012-09-28

S.SIRI JAGAN

body2012
ORDER : Sitting in this jurisdiction, hearing Criminal Revision Petitions for the last one month, what I find is that more often than not, in abkari cases, this Court is forced to acquit accused merely on technical grounds, which arise from the failure on the part of the excise officers to comply with the procedure prescribed under law. In many cases which are reported in law reports also, the accused are acquitted on the ground that there is delay in producing contraband and samples before the court and the same is not duly explained by the officer concerned. In several cases, the prosecution does not care to prove that the sample drawn from the contraband and sealed was the one forwarded to chemical examiner for analysis. On that question, two cases are found in Volume I of 2007 K.L.T., viz, Sathi v. State of Kerala, 2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala, 2007 (1) KLT 720 . In both cases, this Court held that the prosecution has not discharged their duty to prove that it was the sample taken from the contraband liquor seized from the accused that reached the hands of the chemical examiner in a fool-proof condition. The very same defect appears in this case also. 2. The petitioner in this Criminal R.P. is the accused in Sessions Case No.333/2000 before the Assistant Sessions Judge, Mavelikkara. The prosecution was under Sections 8(1), 8 (2) and 55(a) of the Abkari Act. The prosecution case was that on 30.10.1997, while CW1-Preventive Officer and his team were patrolling through Kallumala-Mankamkuzhi road in Arunoottimangalam Muri in Vettiyar Village of Mavelikkara Taluk, from west to east, at about 4.30 p.m., when they reached the southern side of the house of Sarasamma of Saji Bhavanam Veedu, the accused was found carrying 2 litres of arrack in a white plastic can measuring 2 1/4 litres. On confirming that the contents of the can were arrack, the accused was arrested on the spot and the can and the contents were seized under a mahazar prepared on the spot, and one sample was taken from the contraband in a glass bottle measuring 375 ml. The accused and contraband were taken to the range office at 9 p.m. on that day. The accused and contraband were taken to the range office at 9 p.m. on that day. The next day, CW1 entrusted the accused, the contraband and the records to CW7, who prepared the occurrence report and forwarded the accused to the court on 3.11.1997. Thereafter, CW8 conducted the investigation and filed the final report. After trial, the Assistant Sessions Judge convicted the petitioner for offences under Sections 55(a) read with Section 8 (2) of the Kerala Abkari Act and sentenced him to undergo simple imprisonment for two years and to pay a fine of Rs. 1 lakh with a default sentence of imprisonment for one year. His period of detention from 30.10.1997 till 7.11.1997 was directed to be set off. The petitioner filed an appeal before the Additional Sessions Judge-I, Mavelikkara, who dismissed the appeal confirming the conviction and sentence. The judgments of the courts below are under challenge before me. 3. Apart from the contention that the prosecution has not properly proved the case against the petitioner, the learned counsel for the petitioner raises two specific grounds. The first is that the alleged seizure was on 30.10.1997, but the occurrence was reported and the contraband and the accused were produced before the court only on 3.11.1997. According to the petitioner, the prosecution has not offered any explanation for the delay of three days, which vitiates the prosecution itself. The second contention is that it was the duty of the prosecution 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 fool-proof condition. It is submitted before me that the prosecution in this case has not even attempted to do that. It is pointed out that even the forwarding note has not been marked in this case. It is further pointed out that even in the chemical analysis report, what is stated is that the chemical examiner received through the Excise Guard-Gopakumar on the 12th day of November, 1997, the articles referred thereto and has indicated therein. The witnesses examined on the side of the prosecution do not specifically state even that the sample forwarded to the chemical examiner was the sample taken from the contraband seized in this case. The petitioner relies on two decisions of this Court, which I have referred to in the beginning of this judgment. The witnesses examined on the side of the prosecution do not specifically state even that the sample forwarded to the chemical examiner was the sample taken from the contraband seized in this case. The petitioner relies on two decisions of this Court, which I have referred to in the beginning of this judgment. The petitioner also relies on the decision of a Division Bench of this Court in Ravi v. State of Kerala, 2011 (3) KLT 353 for the proposition that the unexplained delay in producing the contraband before the court would vitiate the prosecution under the Abkari Act. 4. In answer, the learned Public Prosecutor would contend that the accused had no such contention before the courts below. No questions in this regard has been asked to any of the witnesses in cross examination. It is submitted that three days' delay cannot be fatal to the prosecution case. Regarding the proof regarding the sample taken from the contraband liquor seized, it is submitted that the sample has to be forwarded as per a forwarding note signed by the court, which only would be analyzed by the chemical examiner, and therefore the failure to mark the forwarding note cannot be held to be fatal to the prosecution case in this case. The Public Prosecutor relies on the decisions of this Court in Vikraman v. State of Kerala, 2007 (1) KLT 1010 and Jose v. State of Kerala, 2007 (2) KLT 202 and the decision of Ravi's case (supra) quoted by the learned counsel for the petitioner. Therefore, according to the learned Public Prosecutor, the prosecution has succeeded in proving the guilt of the petitioner beyond any reasonable doubt and therefore there is no ground to interfere with the judgments of the courts below. 5. I have considered the rival contentions in detail. 6. Perhaps, if the objection of the petitioner was on the ground of the delay of three days in producing the contraband alone, I may not have interfered with the judgments of the courts below on the ground of delay insofar as the delay is of only three days. 5. I have considered the rival contentions in detail. 6. Perhaps, if the objection of the petitioner was on the ground of the delay of three days in producing the contraband alone, I may not have interfered with the judgments of the courts below on the ground of delay insofar as the delay is of only three days. But in this case, the delay is not only of producing the contraband before court, but in reporting the occurrence itself, which has to be done forthwith, as per the statement and there is no evidence whatsoever to prove that it is the sample drawn from the contraband by the Court, which reached the chemical examiner. In Sasidharan's case (supra), a learned Judge of this Court has specifically held as follows in paragraph 9 : "9. 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 10.2.1998, 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 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 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." (Underlining supplied) The Abkari Act does not specifically state as to the manner in which samples have to be taken from the contraband. It appears from the commentaries on the Kerala Abkari Act by Sri. B.G. Harindranath, District and Sessions Judge, 2007 Edition, that as per the Excise Manual, it is the court which has to take the sample from the contraband and send the same to the chemical examiner. That is exactly what has been stated in Sasidharan's case (supra). It appears from the commentaries on the Kerala Abkari Act by Sri. B.G. Harindranath, District and Sessions Judge, 2007 Edition, that as per the Excise Manual, it is the court which has to take the sample from the contraband and send the same to the chemical examiner. That is exactly what has been stated in Sasidharan's case (supra). Therefore, the minimum the prosecution has to do is to get the witness to say that a sample has been taken from the contraband seized, which only has been sent to the chemical examiner for analysis for which marking of the forwarding note is most essential. Admittedly, in this case, the forwarding note has not been marked. I searched through the entire lower court records to find whether there is actually a forwarding note. Copy of the same is not available in the lower court records. None of the witnesses says that it was from the contraband seized from the accused that the sample was drawn, sealed and sent to the chemical examiner. That infirmity in the prosecution case together with the unexplained delay in forwarding the contraband to the court and reporting the occurrence to the court has become fatal to the prosecution case in this case. In Ravis case (supra), the Division Bench categorically held that although the Act does not say that the contraband articles should be forwarded to the court forthwith, it specifically prescribed that the seizure should be reported to the court 'forthwith'. Here, although the seizure was on 30.10.1997, it was reported to the court only on 3.11.1997. The witnesses have not even offered any explanation for the delay. For these reasons, I am of opinion that the prosecution has failed to prove that the sample taken from the contraband was the one sent to the Chemical Examiner for analysis. 7. Therefore, the petitioner is entitled to the benefit of doubt in this case. Accordingly, giving the benefit of doubt, I set aside the judgments of the courts below and acquit the petitioner. The bail bond is cancelled and he shall be set at liberty. 8. Before parting with the case, I would like to comment on the laxity on the part of the excise officers and the prosecutors in conducting abkari cases and the failure on the part of the Government to see that they perform their statutory duties correctly. The bail bond is cancelled and he shall be set at liberty. 8. Before parting with the case, I would like to comment on the laxity on the part of the excise officers and the prosecutors in conducting abkari cases and the failure on the part of the Government to see that they perform their statutory duties correctly. As I have already stated at the beginning of this judgment, in most abkari cases, the courts are forced to acquit the accused on purely technical grounds, which arise from the failure on the part of excise officers to comply with the procedure under law. It is no secret that excise officers are often accused of taking graft from offenders to let them off the hook. The large number of acquittals on technical grounds leaves one to wonder whether the failure to comply with the procedure under law is deliberate. Many such cases relate to spurious toddy and seizure of arrack from licensed toddy shops. But, despite the increasing number of acquittals on technical grounds, the powers-that-be have not taken any steps to remedy the situation by proceeding against the erring officials departmentally. I am surprised that the very same powers have chosen to find fault with the High Court for pointing out the unhealthy practice prevailing in the field of sale of toddy in the State, without looking at the spirit in which the High Court pointed out the malady. What the Court pointed out is that when the total quantity of toddy sold in the State far outweighs the total quantity of toddy produced in the State, it is for anybody to see that what is sold is spurious toddy artificially made from poisonous chemicals, which are harmful to the health of the people who consume the same. But, instead of finding ways to remedy the situation, most of the politicians irrespective of the colour of their flag, came out with a scathing attack on the High Court for having brought this malady to the attention of the Government. The only reason pointed out by them is that a corrective action would render the toddy workers jobless. The number of persons consuming the spurious toddy exceeds the number of toddy workers multi-fold. The only reason pointed out by them is that a corrective action would render the toddy workers jobless. The number of persons consuming the spurious toddy exceeds the number of toddy workers multi-fold. Are we to understand that the politicians are more concerned about the jobs of a few toddy workers than the health of those numerous persons, who consume the spurious toddy believing the same to be real toddy, since the same is sold under licences issued by the Government? Is not the health of those persons more important than the jobs of the few toddy workers? Don't the consumers have a right to get what they pay for? The Excise Minister even made a statement, which was reported in the media, that the people will decide what they should drink and not the Court. If people can decide what they should do, why should there be laws like compulsory wearing of helmets by riders of two-wheelers. Sometimes laws are made to protect people against themselves. The classic example is the Abkari Act itself. Why should there be licensing of sale of liquor, if people can decide what they should drink? Even if the sale of toddy cannot be prohibited, the least the Government can do is to ensure that only natural toddy tapped from the palm trees is sold by licensees. It pains me as a citizen of this country to perceive that instead of doing that, the powers-that-be have come out with a tirade against the High Court for having overstepped the separation of powers in having suggested a method as a remedy for the consideration of the Government. What a pity! The argument that on stopping of sale of toddy, the toddy workers will lose their jobs itself is very weak. The toddy workers can be easily rehabilitated in a clean and healthy manner. Toddy in its unfermented form is a tasty and wholesome soft drink, just like coconut water. I understand that Kerala Agricultural University has suggested a project for commercial production of such soft drink from toddy. In fact, I hear that some of our neighboring States are doing exactly that. If the Government can come out with such a project all these toddy workers can be easily rehabilitated in that business in a wholesome way with no danger to human health. In fact, I hear that some of our neighboring States are doing exactly that. If the Government can come out with such a project all these toddy workers can be easily rehabilitated in that business in a wholesome way with no danger to human health. But, if powers-that-be adopt the policy of court-bashing instead of thinking in terms of adopting such policies to safeguard the health of the people, the poor people of this State will be forced to believe that the priority of the powers-that-be is not the welfare of the people but mere appeasing of vote banks to the detriment of the health of the people whom they profess to serve. I remain with the fervent hope that the Government will at least now have their priorities right.