NARAYANI Vs. EXCISE INSPECTOR

JUDGEMENT

(1.) Two grounds are urged before me by the learned counsel Smt. Rashmi canvassing the correctness, legality and propriety of the concurrent findings on facts recorded by the courts below (the Judicial First Class Magistrate Court, Quilandy in C.C. 956/96 and the Sessions Court, Kozhikode in Crl.A. 455/99) to upset the order of conviction passed by the courts below. The foremost ground projected before me by the learned counsel is that the contraband seized (residue and sample) was seen produced in court only on 13.9.95 and the occurrence report was received by the court on the next day ie., on 14.9.95. Counsel argued that there is no evidence to show that residue and sample taken were kept in the safe custody by PW 3 till those items were produced in court. Counsel contended that chance of tampering cannot be ruled out. The second limb of the contention is that in Ext. P4 chemical analysts report it is not stated what were the tests conducted to ascertain whether the sample contained ethyl alcohol or not and the result of the Analyst alone is stated in that report.

(2.) The facts concurrently found on appreciation of the evidence led by the prosecution in support of its case are mainly based on the evidence given by PW 1, who was at the material time ie., on the date of detection the crime (alleged commission of offence was detected on 9.8.1995) was the Excise Preventive Officer attached to Excise Range, Balussery. He has testified the fact that revision petitioner was seen coming in the opposite direction holding MO1 can of 5 litres capacity containing contraband (illicit liquor) at about 11.45 a.m. on 9.8.95 and the revision petitioner was seen coming from East to West through the pathway lying to the south of house of one Ariyil Sreenu. On seeing the Excise patrol party the revision petitioner became panicky and on entertaining suspicion she was stopped by PW 1. He examined the contents in the can carried by her in the presence of witnesses. He was satisfied on tasting and smelling the contents in the can that it was illicit liquor and revision petitioner was arrested and contraband was seized. It is clear from the evidence of PW 1 that sample was taken in a 180 ml. bottle for the purpose of chemical examination and the sample and the residue in the MO1 can were properly sealed. Label containing the signature of accused and a brief description of case was affixed on the sample and another label containing signature of the accused and brief description of case was affixed on MO1. A mahazar Ext. P1, which is a contemporaneous record was also prepared. PW 2 who is an attestor to Ext. P1 also testified the fact of seizure of contraband and taking sample by PW 1.

(3.) There is also evidence to show that revision petitioner accused along with residue, sample and records was produced before PW 3, who was the Range Officer on the same day and she was released on bail by PW 3. It is the assertion of PW 3 in his evidence that the sample taken and the residue were sent to court on the next day of detection of crime and Ext. P2 crime and occurrence report was sent by him to court within 24 hours. Crime and occurrence report is seen to have received in Court only on 14.9.1995. The explanation given by him for receiving the sample and residue only on 13.9.95 by the court is that due to pressure of work verification was done only on 13.9.95. There is force in the submission made on behalf of the revision petitioner by learned counsel that prosecution failed to prove that sample taken and the residue were kept in the proper custody till the sample and the residue were received by the Court on 13.9.95. PW 3 in cross examination stated that in the office of him the register of thondi and G.D. are maintained and the date of sending the thondi article to the court is recorded in the G.D. and also in the thondi register. Learned Public Prosecutor produced the register alleged to be the thondi register maintained at the office of PW 3 and I have verified the entries made therein. Entry made therein would only show that that residue and the sample were sent to court and the date of sending the same to court is not shown in that register. The evidence available on record would only show that that they were received in court only on 13.9.95. It is not explained properly as to who was in custody of the thondi articles (residue and sample) during the period from 10.8.95 to 12.9.95. The evidence of PW 3 to the effect that due to pressure of work the court failed to verify the residue and the sample cannot be accepted. The Junior Superintendent attached to the Magistrate Court or any employee of the Court was examined to prove such a fact. So on the basis of evidence available it is only possible to say that sample and residue were produced in court only on 13.9.1995. Learned Public Prosecutor submitted that the residue and sample used to be send through messenger and the messenger through whom residue and sample were sent to court was also not examined to prove that on the next day of detection of offence sample and residue were produced in court. In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98 (no evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW 4 that he was not in custody of the contraband) the chance of tampering with the sample taken and the residue seized cannot be ruled out. It is true that PW 1 has identified MO1 can and he has stated in his evidence that it contains his personal seal. Having considered the facts and circumstances of the case, I am of the view that the prosecution has not proved that residue and sample were kept in the proper custody till those items were produced in court on 13.9.95 and chance of tampering cannot be ruled out, benefit of doubt is to be given to the accused.