Raveendran,S/O Neelakantan vs State Of Kerala,Rep.By
2021 Latest Caselaw 15932 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. 2490 OF 2006
 AGAINST THE JUDGMENT IN SC 1865/2003 OF ADDITIONAL SESSIONS
                    COURT (ADHOC)-II, KOLLAM,
APPELLANT:

             RAVEENDRAN, S/O NEELAKANTAN,
             PUNNAVILA PADINJATTATHIL, EDACADU MURI,
             PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM.

             BY ADV C.RAJENDRAN



RESPONDENT/COMPLAINANT:

             STATE OF KERALA, REP.BY
             SUB INSPECTOR, EXCISE RANGE, SASTHAMCOTTA,
             THROUGH THE PUBLIC PROSECUTOR,
             HIGH COURT OF KERALA, ERNAKULAM.

             BY PUBLIC PROSECUTOR SMT. MAYA M.N.




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2490 of 2006               2



                             K.BABU, J.
                   =====================
                       Crl.A.No.2490 of 2006
                   =====================
                    Dated this the 2nd of August, 2021

                            JUDGMENT

Aggrieved by the judgment dated 28.11.2006, passed by the

Additional Sessions Judge (Adhoc) II, Kollam, in

S.C.No.1865/2003, the accused has preferred this appeal. The

accused was convicted of the offence punishable under Section

8(2) of the Abkari Act.

2. The prosecution case is that on 23.5.2002, the accused

was found in possession of 1 litre of arrack in a plastic bottle. The

Excise Preventive Officer, Sasthamcotta detected the offence.

3. After completion of investigation, final report was

submitted against the accused for the offence punishable under

Section 8(2) of the Abkari Act before the Judicial First Class

Magistrate Court, Sasthamcotta. The case was committed to the

Sessions Court, Kollam from where it was made over to the

Additional Sessions Court, (Adhoc) II, Kollam. On appearance of

the accused charge was framed against him for the offence

punishable under Section 8(2) 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 4, Exts.P1 to P4 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 the

arguments addressed from both sides, found that the accused is

guilty of offence under Section 8(2) of the Abkari Act and he was

convicted thereunder. He was sentenced to undergo rigorous

imprisonment for a term of two years and to pay a fine of

Rs.2,00,000/-.

6. Heard Sri.C.Rajendran, 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 contended that

the prosecution failed to establish that the articles said to have

been seized from the possession of the accused eventually

reached the hands of the Analyst 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. PW1, the Excise Preventive Officer, Excise Range

Office, Sasthamcotta detected the offence. PW1 has given

evidence that on 23.5.2002 at 1.30 pm, the accused was found in

possession of 1 litre of illicit arrack in a plastic can at Poruvazhi.

The contraband substance was seized from the possession of the

accused as per Ext.P1 seizure mahazar by PW1. The accused

was arrested from the spot. PW2, the Excise Guard, who had

accompanied PW1, supported the prosecution case. PW3, the

independent witness, did not support the prosecution. PW4 has

conducted investigation and submitted final report.

11. The learned counsel for the appellant, relying on the

following circumstances, contended that the prosecution has not

succeeded in establishing that the contraband substance

allegedly recovered from the possession of the accused

eventually reached the Chemical Examiner's laboratory:

a) The detecting officer has not given

evidence as to the nature and description of the

seal affixed on the bottle containing the sample.

b) Ext.P1 seizure mahazar is silent

regarding the nature and description of the seal

affixed on the bottle containing the sample.

               c)        The specimen impression of the seal has

            not     been    produced       before    the    court           and

            forwarded to the Chemical Examiner.

                    d)     The delay in analysis of the sample at

the Chemical Examiner's laboratory has not been

satisfactorily explained.

12. The oral evidence of PWs 1 and 2, the detecting officer

and the other official witness, is silent regarding the nature

and description of the seal affixed on the bottle containing

the sample. Ext.P1 seizure mahazar does not contain

any narration as to the nature of the seal used by the detecting

officer. The detecting officer who has drawn the sample has to

give evidence as to the nature of the seal affixed on the bottle

containing the sample. The nature of the seal used shall be

mentioned in the seizure mahazar. The specimen of the seal

shall be provided in the seizure mahazar and also in the

forwarding note, so as to enable the court to satisfy the

genuineness of the sample produced in the court. (vide:

Bhaskaran v. State of Kerala and another (2020 KHC

5296), Krishnadas v. State of Kerala (2019 KHC 191).

13. The learned counsel for the appellant/accused

contended that there is nothing to show that the specimen

impression of the seal was produced before the court and

provided to the Chemical Examiner for verification and to ensure

that the specimen seal so provided was tallied with the seal

affixed on the bottle containing the sample. There is absolutely

no evidence as to the nature and description of the seal stated to

have been affixed on the bottle containing the sample.

14. The copy of the forwarding note, which contains the

specimen impression of the seal and the name of the official with

whom the sample is entrusted for delivering the same to the

Chemical Examiner's laboratory, has not been produced and

marked in this case. In Ramachandran v. State of Kerala

(2021(1) KLT 793) while dealing with a similar fact

situation, this Court held thus:

"Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."

15. In 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".

16. There is no convincing evidence before the court to

see that the specimen impression of the seal had been provided

to the Chemical Examiner. In such a situation, no evidentiary

value can be given to Ext.P4 certificate of chemical analysis.

Ext.P4 certificate of analysis would show that the sample

reached the laboratory on 15.6.2002. The sample was analysed

on 18.2.2003. The prosecution has not offered any explanation

for the delay in examination of the sample. While considering

the delay in examination of the sample this Court in Krishnadas

v. State of Kerala (2019 KHC 191) held as follows:

"6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused."

17. In the instant case, the delay of almost eight months

in subjecting the sample for analysis has not been explained by

the prosecution.

18. The admitted case of the prosecution is that the

sample remained in the possession of the property clerk of the

court, the excise official who received the sample from the court,

the Excise Guard Sri.Ratheesh Kumar who delivered the sample

to the laboratory. There is no evidence to show the date on

which the sample was handed over to the excise official who

delivered the same to the Chemical Examiner's laboratory. It has

come out in evidence that the sample changed several hands.

None of the witnesses who handled the sample before it reached

the laboratory has been examined by the prosecution to prove

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

inevitable effect of this omission is that the prosecution failed to

rule out the possibility of the sample being changed or tampered

with during the period-a fact which had to be proved

affirmatively by the prosecution. (vide: State of Rajasthan v.

Daulat Ram [AIR(1980)SC 1314].

19. 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.

20. 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.

21. The upshot of the above discussion is that the

conviction entered by the court below overlooking these vital

aspects of the matter cannot therefore be sustained. The

appellant/accused is therefore not guilty of the offence

punishable under Section 8(2) of the Abkari Act. The appellant is

acquitted of the charge. He is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU

JUDGE ab