Rajendran Pillai, S/O. Kuttan ... vs State Of Kerala
2021 Latest Caselaw 15931 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
   MONDAY, THE 2ND DAY OF AUGUST 2021 / 11TH SRAVANA, 1943
                     CRL.A NO. 1605 OF 2007
  AGAINST THE JUDGMENT IN SC 190/2001 OF ADDITIONAL SESSIONS
         JUDGE   (ABKARI CASES), KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:

          RAJENDRAN PILLAI, S/O. KUTTAN PILLAI,
          KANJIRAMVILA PUTHEN VEEDU,
          THRIKKANNAMANGAL MURI, KOTTARAKKARA TALUK,,
          KOTTARAKKARA, KOLLAM.

          BY ADV SRI.K.V.ANIL KUMAR



RESPONDENT/COMPLAINANT:

          STATE OF KERALA
          REP. BY PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA, ERNAKULAM.




          SMT. MAYA M.N. (P.P)




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A No.1605 of 2007                  2




                                      K.BABU, J.
                         =========================
                              Crl.A No.1605 of 2007
                         ==========================
                           Dated this the 2nd day of August, 2021



                                  JUDGMENT

Challenge in this appeal is to the judgment dated 23.8.2007

passed by the Additional Sessions Judge (Abkari Cases),

Kottarakkara in S.C.No.190/2001. By the impugned judgment, the

accused was convicted of the offence under Section 55(a) of the

Abkari Act.

2. The prosecution case is that on 26.5.1999 at 5.30 pm, the

accused was found in possession of 4 litres of arrack in a 5 litre

black can at Kalluvattamkuzhi on the Thrikkannamangal-

Sadanandapuram road. The offence was detected by a Preventive

Officer attached to Excise Range Office, Kottarakkara.

3. After completing investigation, final report was submitted

against the accused for the offence punishable under Section 55(a)

of the Abkari Act before the Judicial First Class Magistrate Court I,

Kottarakkara. The case was committed to the Sessions Court,

Kollam from where it was made over to the Additional Sessions

Court, (Abkari Cases), Kottarakkara. On appearance of the accused

charge was framed against him for the offence punishable under

Section 55(a) of the Abkari Act. The accused pleaded not guilty and

therefore, he came to be tried by the trial court for the aforesaid

offence.

4. The evidence for the prosecution consists of the oral

evidence of PWs 1 to 6, Exts.P1 to P7 and MO1.

5. After closure of the evidence on behalf of the prosecution,

the statement of the accused under Section 313 Cr.P.C was

recorded. He pleaded innocence. The trial court heard the matter

under Section 232 Cr.P.C. and found that there is evidence against

the accused and hence he was called upon to enter on his defence

and to adduce evidence, if any, he may have in support thereof. The

learned trial court, after hearing arguments addressed from both

sides, found that the accused is guilty of offence under Section 55(a)

of the Abkari Act and he was convicted thereunder. He was

sentenced to undergo simple imprisonment for a period of three

years and to pay a fine of Rs.1,00,000/- under Section 55(a) of the

Abkari Act.

6. Heard Sri.K.V.Anilkumar, the learned counsel appearing

for the appellant/accused and Smt.Maya M.N, the learned Senior

Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant/accused contended

that the prosecution failed to establish that the contraband

substance allegedly recovered from the possession of the accused

was eventually subjected to analysis at the Chemical Examiner's

laboratory.

8. The learned Public Prosecutor, per contra, submitted that

the prosecution could well establish the charge against the accused.

He contended that sufficient materials are there to establish the

prosecution case.

9. The only point that arises for consideration is whether the

conviction entered and the sentence passed against the accused are

sustainable or not.

THE POINT

10. The Preventive Officer, Excise Range Office, Kottarakkara

(PW1) has given evidence that on 26.5.1999 at 5.30 pm while the

excise team led by him was on patrol duty along the

Thrikkannamangal-Sadanandapuram road, the accused was found

carrying a jerry can. PW1 inspected the can and found that it

contained 4 litres of arrack. The contraband substance was seized

from the possession of the accused by PW1 as per Ext.P1 seizure

mahazar. The accused was arrested from the spot. PW2, the Excise

Guard attached to Excise Range Office, Kottarakkara supported the

version of PW1. PW3, another Preventive Officer of the Excise

Range Office, Kottarakkara received the contraband substance

seized by PW1. The accused was also produced before PW3, who

registered Crime No.31/1998 of Kottarakkara Excise Range. The

accused and the contraband substance were produced before the

court on the next day by PW3.

11. PWs 4 and 5, the independent witnesses, did not support

the prosecution case. PW6 conducted investigation and submitted

final report against the accused.

12. The learned counsel for the appellant/accused relied on

the following circumstances contended that the prosecution has not

succeeded in establishing that the contraband substance allegedly

seized from the possession of the accused was actually subjected to

analysis in the Chemical Examiner's laboratory:

a) The detecting officer and other official

witnesses have not given evidence as to the nature and

description of the seal affixed on the can allegedly

possessed by the accused at the scene of occurrence.

                b)      Ext.P1       seizure         mahazar,             the

        contemporaneous           document     evidencing      seizure,    is

silent with regard to the nature of the seal affixed on

the can recovered from the scene of occurrence.

c) There is no evidence to show that the

specimen impression of the seal was provided to the

Chemical Examiner's laboratory.

d) The prosecution has failed to adduce

evidence as to who had drawn sample from the

contraband substance produced before the court.

13. The official witnesses, examined to prove the incident

proper, have not given evidence with regard to the nature and

description of the seal affixed on the jerry can (MO1) allegedly

recovered from the possession of the accused. Ext.P1 is also silent

regarding the seal affixed on MO1. The specimen of the seal stated

to have been affixed on MO1 can has not been produced before the

court and marked. The detecting officer is expected to give

evidence as to the nature of the seal affixed on MO1 can. The

nature of the seal used shall also be mentioned in the seizure

mahazar. The specimen of the seal shall be produced in the court,

so as to enable the court to satisfy the genuineness of the case of

the prosecution that the contraband allegedly recovered from the

place of occurrence reached the court. In the absence of evidence

to convince the court regarding the nature and description of the

seal affixed on MO1 can, it cannot be said that the prosecution has

established that MO1 was produced before the court in a tamper

proof condition. In the instant case, admittedly, the sample was not

drawn at the scene of occurrence by the detecting officer. Ext.P5

would show that a 5 litre black can containing 4 litres of illicit

arrack was produced before the court by PW3. Ext.P7 would show

that one sealed bottle containing 150 ml of clear and colourless

liquid alleged to be arrack was received in the Chemical Examiner's

laboratory on 5.12.1998. PW3 has given evidence that he had

submitted a requisition before the Judicial First Class Magistrate

Court I, Kottarakkara for sending the sample to the Chemical

Examiner's laboratory for analysis. The prosecution has not

adduced evidence as to who had drawn the sample and on which

date. On a careful perusal of the records available, this Court finds

that no contemporaneous record showing taking of sample in the

court was prepared. There is nothing to show that the learned

Magistrate had given direction to the custodian of the property to

take a specified quantity of the contraband substance as sample and

to forward the same to the Chemical Examiner's laboratory. It

appears that on some day between 27.5.1998 and 5.12.1998

somebody might have collected sample from the bulk quantity of the

contraband substance produced before the court and forwarded the

same to the Chemical Examiner's laboratory. This Court is also in

the dark as to whether the specimen impression of the seal had

been forwarded to the Chemical Examiner's laboratory for

verification.

14. There is also no evidence to show on which date the

sample was sent to the Chemical Examiner's laboratory. Ext.P7

certificate of analysis would show that an Excise Guard by name

Sri.Shibu Pappachan delivered the sample in the laboratory on

5.12.1998. There is absolutely no evidence to show that the

specimen impression of the seal affixed on the bottle containing the

sample was forwarded to the Chemical Examiner's laboratory.

While considering a case in which there was no evidence to

convince the court that specimen impression of the seal was

forwarded to the Chemical Examiner, i n Rajamma v. State of

Kerala (2014(1) KLT 506), this Court held thus:

"The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant".

15. It is the admitted case of the prosecution that there is

lack of evidence as to who had drawn the sample. There is also no

evidence to show as to whether the sample sent to the Chemical

Examiner's laboratory was the one drawn from the contraband

substance contained in MO1. This question becomes more relevant

when it is found that during the trial MO1 contained approximately

4 litres of arrack, as is evident from the appendix of the judgment.

The court below has recorded the finding that Ext.P6 itself would

reveal that the sample was collected from MO1 jerry can. Ext.P6 is

a requisition to forward the material object to the Chemical

Examiner. There is nothing to show that Ext.P6 was received by any

of the officials in the court. Ext.P6 lacks initials of any of the

officials of the court as well as that of the learned Magistrate. I am

unable to find anything in Ext.P6 to see that the sample was

collected from MO1 jerry can. There is absolutely no evidence to

show that the sample tested in the Chemical Examiner's laboratory

was the one drawn from MO1 can. The sample remained in the

custody of the official concerned of the court, the excise official who

received the sample from the court and Sri.Shibu Pappachan who

delivered the same to the Chemical Examiner's laboratory. None of

these witnesses were examined by the prosecution to prove that

while in their custody, the seal was not tampered with. The

inevitable conclusion is that the prosecution failed to rule out the

possibilities of the sample being changed or tampered with. The

prosecution ought to have examined the custodian of the property in

the court (property clerk) and the excise official concerned

including Sri.Shibu Pappachan to rule out the possibility of sample

being changed or tampered with during the period in which it

remained in their custody. (See: State of Rajasthan v. Daulat

Ram [AIR(1980)SC 1314].

16. It was also imperative on the part of the prosecution to

give evidence as to who had drawn the sample and also as to

whether the sample was drawn as per the directions of the learned

Magistrate.

17. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569),

the Apex Court held that mere production of a laboratory report that

the sample tested was contraband substance cannot be conclusive

proof by itself. The sample seized and that tested have to be co-

related.

24. It is settled that the prosecution in a case of this nature

can succeed only if it is proved that the sample which was analysed

in the Chemical Examiner's laboratory was the very same sample

which was drawn from the bulk quantity of the alleged contraband

substance said to have been seized from the possession of the

accused. In the instant case, the prosecution was unable to

establish the link connecting the accused with the contraband

seized and the sample analysed in the laboratory. The accused is

entitled to benefit of doubt arising from the absence of link evidence

as discussed above.

25. The upshot of the above discussion is that the prosecution

failed to establish the charge against the accused. The conviction

entered and sentence passed by the trial court, ignoring these vital

aspects, cannot be sustained. The appellant/accused is therefore

not guilty of the offence punishable under Sections 55(a) of the

Abkari Act. He is acquitted of the charge. The appellant/accused is

set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU JUDGE ab