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2016 DIGILAW 863 (KER)

Biju S/o Pappu v. State of Kerala

2016-10-17

P.D.RAJAN

body2016
ORDER : 1. This revision petition is preferred by the accused against the judgment in Crl. Appeal No. 836 of 2002 of Additional Sessions Judge, North Paravur. He was charge sheeted in SC No. 226 of 2001 by the Additional Assistant Sessions Judge, North Paravur under Section 58 and 8(1) and (2) of the Abkari Act (for short ‘Act’). Learned Assistant Sessions Judge convicted the accused under Section 8(1) and 58 of the Abkari Act and sentenced to simple imprisonment for two years and fine of Rs. 1,00,000/- under Section 8(1) of the Abkari Act, no separate sentence was imposed under Section 58 of the Abkari Act. Against that, he preferred the above appeal, where learned Sessions Judge dismissed the appeal. Being aggrieved by that, accused preferred this revision petition. 2. The charge against the accused was that on 18.10.1999, at 4.30 pm, the Excise Inspector, Angamaly was conducting patrol duty, accused was found in possession of two litres of arrack in a can in front of the chapel at Thavalappara on the Thavalappara-Pooppani public road. He was arrested and the contraband articles were seized by the Excise Inspector, reaching at the excise office, he entrusted the accused the contraband articles and seizure mahazar to the Excise Range office, Angamaly where they registered a crime. After completing investigation, Excise Inspector, Angamaly laid charge against the accused in the Judicial First Class Magistrate, Aluva. Subsequently, the case was committed to the Sessions Court, from there it was made over to the Additional Assistant Sessions Judge, North Paravur for trial. In pursuance of the trial, prosecution examined PW-1 to PW-4 and marked Ext.P1 to P7. MO1 was admitted as material object. Incriminating circumstances brought out in evidence were denied by the accused while questioning him. He examined DW-1 to DW-3 in support of his defence and marked Ext.D1. 3. Learned counsel appearing for the revision petitioner contended that sample was not taken by the detecting officer at the time of seizure of the contraband articles. No report was furnished by the Excise Inspector, Angamali to show that they had taken sample from the excise office. In the absence of such evidence, Ext.P6 chemical analysis report is not admissible in law for a conviction. 4. Learned Public Prosecutor submitted that the sample was forwarded to the chemical examiner’s lab through court by virtue of Ext.P5 forwarding note, hence Ext.P6 is a valid document. In the absence of such evidence, Ext.P6 chemical analysis report is not admissible in law for a conviction. 4. Learned Public Prosecutor submitted that the sample was forwarded to the chemical examiner’s lab through court by virtue of Ext.P5 forwarding note, hence Ext.P6 is a valid document. No circumstances are brought out in evidence to discard the evidences in Ext.P5 and P6 documents. 5. In an abkari case, it is the responsibility of the detecting officer to take sample from the place of seizure and prepare a seizure mahazar at the place of seizure itself. Taking of sample, sending prompt reports to the courts, proper preservation of samples in lawful custody and adducing proof of that custody ensure authenticity of the procedure in an abkari case. The illegalities committed by the prosecution while taking sample of opium and forwarding it to chemical examiner’s lab for analysis has been explained by the apex Court in State of Rajasthan vs. Doulat Ram, AIR 1980 SC 1314 . Apex Court held that “where the samples of opium changed several hands before reaching the public analyst and yet none of those in whose custody the samples remained were examined by the prosecution to prove that while in their custody, the seals on the samples were not tampered with, the inevitable effect of the omission was that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period in question - a fact which had to be proved affirmatively by the prosecution. Consequently, the accused could not be convicted under Section 9A. In such a case, the prosecution could not be allowed to fill up the gaps in the prosecution story at the appellate or revisional stage.” 6. The evidence of PW-1 in this case shows that he seized two litres of arrack from the possession of the revision petitioner after preparing Ext.P2 mahazar. Ext.P1 is the arrest memo, thereafter he registered Ext.P3 crime and occurrence report. The accused and contraband articles were produced before court, but no evidence has been adduced by PW-1 to show that the sample was taken from the seized article and he affixed label and sealed the sample and the balance arrack at the place of seizure itself. PW-2 Assistant Excise Inspector also deposed that PW1 seized the article but he did not take sample from the place of seizure. PW-2 Assistant Excise Inspector also deposed that PW1 seized the article but he did not take sample from the place of seizure. However he identified his signature in Ext.P2 mahazar. The Village Officer also prepared Ext.P4 site plan. PW-4 Excise Inspector, Excise Divisional officer, Ernakulam deposed that he conducted investigation in this case. 7. In this case, Ibrahim Rawther took sample from the seized article which was forwarded to the Judicial First Class Magistrate II, Aluva for onward transmission to the Chemical Examiner’s Laboratory but no evidence has been adduced by him to show that he carefully packed, labelled and sealed it in the presence of witnesses and signed in the labels affixed to each article. In such a situation, strong evidence is necessary to prove the safe custody of the seized articles. The above improprieties and delay noticed in the manner of taking sample and sending sample for chemical analysis invalidate the bona-fides of the chemical analysis report in an abkari case. The irregularity and illegality in taking sample itself invalidates the bona-fides in the chemical analysis report. Therefore it is desirable to take sample from the place of seizure and seal the sample in order to avoid tampering, thereafter prepare seizure mahazar at the spot itself from where the arrack was seized. Proper taking of sample, prompt reports, proper preservation of samples in lawful custody with proof ensure authenticity of the procedure. This provides that if proper analysis is made in the chemical examination laboratory it will fasten the credibility of the compliance of procedure in taking sample. The inevitable effect of omission is that there is possibility of tampering of the sample when it was handed over to several persons. In order to avoid such infirmity, the best procedure is that the sample should be collected from the place of seizure itself, comply all the procedure formalities and then hand over it to the public analyst in a tamper proof condition. 8. According to chapter XXV of Excise manual Rule 34, three samples not less than 130 gms of weight from each distinct kind of excisable drug and two litres of smaller quantity may be available to each kind of liquor or wash may be taken in the presence of Excise Inspector or a senior most Excise Officer present and the accused. According to chapter XXV of Excise manual Rule 34, three samples not less than 130 gms of weight from each distinct kind of excisable drug and two litres of smaller quantity may be available to each kind of liquor or wash may be taken in the presence of Excise Inspector or a senior most Excise Officer present and the accused. Each set of sample should then be sealed and marked with the same number or mark the particulars which should be entered in appropriate column of the contraband register and in occurrence report of the case. One sample set may be taken by the officer depositing it and two may be left with the officer in charge of the range with the occurrence report of the case. If the articles are deposited by the Inspector, all the three samples may be retained in the range office. One of these samples will then be available for the use of the officer in charge of the range for analysis if needed and then the other for the Magistrate’s inspection if the case is prosecuted before a Magistrate. 9. I have earlier mentioned that Ibrahim Rawther, Excise Inspector, Angamaly range took sample in this case and sent it to the chemical examination lab for analysis, but he was not examined as a witness in this case. Ext.P5 is the forwarding note prepared by Rawther. PW-4 identified the signature of the said Rawther in Ext.P5. Ext.P6 is the chemical analysis report in which ethyl alcohol was detected in the sample. The decision of the Apex Court in State of Rajasthan (supra) is relevant in this context. It is the primary responsibility of the detecting officer to take sample from the place of seizure. But if the sample was taken from the excise office, prosecution has to narrate that procedure in the report that the Excise Inspector took sample at the excise office, affixed the label and sealed it in a tamper proof condition. As per Rule 32, the officer depositing may also take samples from the excise office, then the excise inspector of the Range shall affix his seal on the sample so taken. If there is omission to record the above procedural formality, the effect of non compliance is that prosecution failed to comply the procedural formalities provided in the Act. As per Rule 32, the officer depositing may also take samples from the excise office, then the excise inspector of the Range shall affix his seal on the sample so taken. If there is omission to record the above procedural formality, the effect of non compliance is that prosecution failed to comply the procedural formalities provided in the Act. The evidence of prosecution witnesses show that at the stage of seizure of arrack or when it was produced before Excise Inspector’s office, they failed to take sample in a tamper proof condition. Even though the labels were affixed, there is no guarantee that they sealed the sample in tact, while in the custody of the Excise Inspector. 10. Apex Court in Valsala vs. State of Kerala, 1993 (2) KLT 550 held that the prosecution in a case of this nature can succeed only if it is shown that the contraband liquor was seized from the accused and ultimately reached at the chemical examiner’s lab by change of hands in a tamper proof condition. If such evidence is not there, no conviction can be entered against the accused on the basis of such chemical analysis report. This court in Sasidharan vs. State of Kerala, 2007 (1) KLT 720 and Sathi vs. State of Kerala, 2007 (1) KLT SN 57 also explained the position. There is no satisfactory link of evidence to show that the samples examined in the chemical examiner’s lab and the report in Ext.P6 are one and the same. Therefore in this context the decision in Rajamma vs. State of Kerala, 2014 (1) KLT 506 is relevant. The arrest of the revision petitioner with MO1 is not sufficient to establish that accused committed an offence under Section 8(1) of the Abkari Act. It is the duty of the prosecution to prove the case beyond reasonable doubt but the accused was found in possession of two litres of arrack as alleged by the prosecution. In the absence of such evidence, the conviction and sentence passed by the trial court under Section 8(1) and 58 of the Abkari Act are to be set aside. 11. The abkari officers both excise and police who are the enforcement agencies, in majority cases do not promptly exercise their power of investigation of offences under the Abkari Act. In the absence of such evidence, the conviction and sentence passed by the trial court under Section 8(1) and 58 of the Abkari Act are to be set aside. 11. The abkari officers both excise and police who are the enforcement agencies, in majority cases do not promptly exercise their power of investigation of offences under the Abkari Act. Even though Abkari Act and excise manual provides guidelines in taking sample, the abkari officers are not strictly following the procedures in the correct sense. In the manual, it is ensured that seizure should be reported to the court forthwith and make a request for sending sample for analysis in a tamper proof condition. Therefore it should be ensured that immediately on the seizure, the seized article has to be produced before court forthwith with a request for sending sample for analysis. The quantity of sample taken for analysis and method of packing are specifically mentioned in the excise manual. If the above procedures provided in the abkari Act and excise manual are not properly complied by the Excise and police officers, their work will be a waste exercise. 12. Before parting with this judgment, I would like to point out that stringent punishments are provided under the various sections of the abkari Act which includes imprisonment which may extend to 10 years and fine not less than one lakh rupees. Under Section 8(2), 55(a)(b) c), (f) (g) (h) (i) and Section 58 of the Abkari Act, imprisonment for a term which may extend to 10 years and fine not less than Rupees One lakh shall be imposed upon a conviction. Apex Court in Sasikumar vs. State of Kerala, 2012 (4) KLT 867 held that the minimum amount of fine prescribed by law is kept so high and the court naturally impose the default sentence of imprisonment for substantially longer period. Therefore fixing minimum fine at a high amount regardless of the quantity of arrack or liquor create discrimination in default of those convicts who have sufficient means to pay fine. The default sentence in default of payment of fine, it is difficult to avoid such imprisonment which amounts to an additional sentence of imprisonment. Apex Court left the matter to the courts to exercise their judicial discretion freely in the matter of imposition of fine. 13. The default sentence in default of payment of fine, it is difficult to avoid such imprisonment which amounts to an additional sentence of imprisonment. Apex Court left the matter to the courts to exercise their judicial discretion freely in the matter of imposition of fine. 13. Now it is high time to consider the similar provisions in Narcotic Drugs and Psychotropic substances Act, 1985 (for short ‘NDPS Act’) in the present scenario. The development in the field of illicit drug traffic and drug abuse at national and international level have been noticed by the Government of India, and realized that the scheme of penalties under the NDPS Act was not sufficient to meet the challenges of well organized drug smugglers and their gangs. Considering the urgent need, a comprehensive legislation was made and subsequently amended certain penal provision in the year 1988 and 2001 (Act 2 of 1989) (Act 9 of 2001) which strengthened the existing control over drug abuse. Central Government amended the Punishment for contravention in relation to cannabis plant and cannabis under Section 20 of NDPS Act and divided into small quantity, lesser than commercial quantity and commercial quantity. In view of the amendment in the NDPS Act, an urgent interference is necessary by the government of Kerala for the enactment of a comprehensive legislation on Abkari Act in our State. 14. It is pertinent to note that the scheme of penalty under the present Abkari Act is discriminatory and not sufficient to meet the challenges of the well organised gangs who import, export, transport, manufacture, sale and possess intoxicating liquor and intoxicating drugs in the State of Kerala. Punishment for contravention of small quantity and huge quantity of liquor are one and the same and heavy sentence is imposed. This is pure discrimination between haves and have-nots hence urgent interference is necessary in this matter. Besides this during recent years, addiction to liquor and new drugs have considerably increased in this State which posed serious threat to this State. This indeed, is a serious matter and Government shall look into the above matters seriously and make necessary amendment in the Abkari Act and in the excise manual urgently. 15. Besides this during recent years, addiction to liquor and new drugs have considerably increased in this State which posed serious threat to this State. This indeed, is a serious matter and Government shall look into the above matters seriously and make necessary amendment in the Abkari Act and in the excise manual urgently. 15. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand special emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of acquitting a guilty person light heartedly, goes much beyond the simple fact that just one guilty person has gone unpunished. If unmerited acquittals become general, they tend to land to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted ‘persons’ and more severe punishment of those who are found guilty. Thus, too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscound Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent ................” In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents. Relied Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Crl) 1033 : (1974) 1 SCR 489 : AIR 1973 SC 2622 : 1973 Crl LJ 1783. Relied Shivaji Sahabrao Bobade vs. State of Maharashtra, (1973) 2 SCC 793 : 1973 SCC (Crl) 1033 : (1974) 1 SCR 489 : AIR 1973 SC 2622 : 1973 Crl LJ 1783. In the circumstance, the conviction and sentence imposed by the Additional Assistant Sessions Judge under Section 8 and under Section 58 of the Abkari Act are set aside and the accused is acquitted and set at liberty. The revision petition is allowed. 16. In the above context, Registrar General will forward a copy of this order to the Chief Secretary to Government of Kerala for taking appropriate remedial action to ensure appropriate amendment in the Abkari Act and in the Excise manual for ensuring effective enforcement of the Act.