Kerala High Court
Chellappan vs State Of Kerala on 2 August, 2021
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. 2523 OF 2007
AGAINST THE JUDGMENT DATED 30.11.2007 IN SC.NO. 397/2006 OF
THE ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS ACT CASES),
THODUPUZHA, IDUKKI DISTRICT
APPELLANT/ACCUSED:
CHELLAPPAN
S/O. RAGHAVAN, VALIYAPARAMBIL HOUSE,
AYYAPPANCOIL VILLAGE, KALYANATHANDU KARA.
BY ADVS.
SRI.B.PREMOD
SRI.SUDHEER GANESH KUMAR.R.
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REP. BY THE EXCISE INSPECTOR, KATTAPPANA RANGE,
REPRESENTED, BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA.
BY SMT.MAYA M.N., PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2523 OF 2007
2
K. BABU J.
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Crl.A.No.2523 of 2007
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Dated this the 2nd day of August, 2021
J U D G M E N T
Challenge in this appeal is to the judgment dated
30.11.2007, passed by the learned Additional Sessions
Judge/Special Judge for NDPS Act Cases, Thodupuzha in
SC.No.397/2006.
2. By the impugned judgment the accused was
convicted of the offence punishable under Section 8(2) of
the Kerala Abkari Act.
3. The prosecution case is that on 11.06.2003 at
about 06.00 p.m., the accused was found in possession of
3 liters of illicit arrack on the Kattapana-Elappara road
near Nariyampara City. The offence was detected by the
Excise Inspector, Kattapana.
4. After completion of investigation final report
was submitted against the accused for the offence
CRL.A NO. 2523 OF 2007
punishable under Section 8(2) of the Abkari Act before
the Judicial First Class Magistrate Court, Kattapana.
5. The case was committed to the Sessions Court,
Thodupuzha, from where it was made over to the Trial
Court. 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.
6. The evidence for the prosecution consists of the
oral evidence of PWs 1 to 3, Exts.P1 to P9 and Mos.1 to
3.
7. 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 was 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.
CRL.A NO. 2523 OF 2007
The learned trial court, after hearing 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. The accused was
sentenced to undergo rigorous imprisonment for a term of
six months and to pay a fine of Rs.1,00,000/-.
8. Heard Sri.B.Pramod, the learned counsel
appearing for the appellant/accused and Smt. Maya M.N.,
the learned Public Prosecutor appearing for the
respondent.
9. The counsel for the appellant/accused contended
that the prosecution has not succeeded in establishing
that the contraband substance allegedly seized from the
place of occurrence was eventually subjected to analysis
at the Chemical Examiner's laboratory.
10. The learned Public Prosecutor, per contra,
submitted that the prosecution could well establish the
charge against the accused.
11. The only point that arises for consideration is
CRL.A NO. 2523 OF 2007
whether the conviction entered and the sentence passed
against the accused are sustainable or not.
THE POINT
12. PW2, the Excise Inspector, Kattapana Range, was
on patrol duty on 11.06.2003. At about 06.00 p.m., while
the Excise team led by PW2 was travelling on the
Kattapana-Elappara road at Nariyampara City, the accused
was found carrying a plastic cover. The Excise team
prevented the accused from moving away. PW2 inspected the
plastic bag found in possession of the accused. The
plastic bag contained 2 plastic bottles. PW2 ascertained
that the 2 bottles contained illicit attack. PW2 seized
the contraband substance found in the possession of the
accused, as per Ext.P1 seizure mahazar. He collected 200
ml each from the 2 bottles in 375 ml bottles as sample
and sealed the same. The accused was arrested from the
spot.
13. PW1, an independent witness, did not support the
prosecution case. PW3 conducted investigation and
CRL.A NO. 2523 OF 2007
submitted final report before the Court against the
accused.
14. The learned counsel for the appellant/accused
relied on the following circumstances to contend that the
prosecution has not succeeded in establishing that the
contraband substance allegedly seized from the place of
occurrence ultimately 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 bottles containing the sample.
(b) Ext.P1 seizure mahazar, does not contain any
narration as to the nature and description of
the seal affixed on the bottles containing the
sample.
(c) Ext.P7, copy of the forwarding note, is silent
regarding the person with whom the sample bottle
was entrusted to deliver the same to the
Chemical Examiner's laboratory.
CRL.A NO. 2523 OF 2007
(d) There is no satisfactory explanation for the
delay in the analysis of the sample at the
Chemical Examiner's laboratory.
15. PW2 had not given evidence as to the nature and
description of the seal affixed on the bottle containing
the sample. Ext.P1, seizure mahazar, is also silent
regarding the nature and description of the seal stated
to have been affixed on the bottle containing the sample.
16. 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.
[vide: Bhaskaran v. State of Kerala and another (2020
KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)].
17. Learned counsel for the accused/appellant
submitted that Ext.P8, the copy of the forwarding note,
does not contain the name of the person with whom the
sample was forwarded to the Chemical Examiner's
laboratory and that the learned Magistrate who
CRL.A NO. 2523 OF 2007
countersigned on Ext.P8 did not mention the date on which
he made his initial thereon. Ext.P8, copy of the
forwarding note, is silent with regard to the name of the
person with whom the sample was sent for analysis.
Ext.P9, the certificate of chemical analysis, would show
that the Excise Guard, Sri.Thankachan Abraham, delivered
the sample to the laboratory on 26.09.2003. It is not
discernible as to why the space meant for writing the
name of the Excise Guard with whom the sample was sent,
remained vacant in Ext.P8. The learned Magistrate omitted
to mention the date on which he made his initial. In the
absence of evidence regarding the date on which the
learned Magistrate put his initial, it is not clear from
Ext.P8 as to how many days before the despatch of the
sample, the learned Magistrate put his initial threon.
This is relevant, particularly when the space meant for
writing the name of the official with whom the sample was
sent, remained vacant. In such a situation, it was
imperative for the prosecution to examine the Thondy
CRL.A NO. 2523 OF 2007
clerk of the court or the Excise guard concerned to prove
the tamper proof despatch of the sample to the
laboratory. While considering a similar fact situation,
this Court in Kumaran v. State of Kerala [2016 (4) KLT
718], held thus:
"7.There is yet another reason to grant benefit of
doubt to the revision petitioner, which is stated
hereunder. Ext.P9 is the copy of the forwarding note
whereby the sample was forwarded to the chemical
examiner. The copy of the forwarding note is silent
with regard to the name of the person with whom the
sample was sent for analysis. Ext.P4 Certificate of
chemical analysis would show that the sample was
received in the laboratory through the Excise Guard
Sri. Dinesan on 2-8-2007. It is not discernible as to
why the space meant for writing the name of the
Excise Guard/Preventive Officer, with whom the sample
was sent, remained vacant in Ext.P9 copy of the
forwarding note. This would give an indication that
even at the time when the learned Magistrate put the
initial in the copy of the forwarding note, it was
not decided as to with whom the sample had to be sent
to the laboratory for analysis. It is also not
discernible from Ext.P9 as to when the learned
magistrate put the initial in the forwarding note.
The learned magistrate ought to have written the date
on which the initial was made, which is normally
expected in a case like this. However, since the date
was not written by the learned magistrate when the
initial was made, it is not clear from Ext P9 as to
how many days before the despatch of the sample, the
learned magistrate put the initial in Ext P9. This
becomes relevant, particularly when the space meant
for writing the name of the Excise Guard/Preventive
Officer with whom the sample was sent, remained
vacant in Ext.P9 copy of the forwarding note. In such
a situation, it was imperative for the prosecution to
examine the thondy clerk of the court or the Excise
CRL.A NO. 2523 OF 2007
guard concerned to prove the tamper-proof despatch of
the sample to the laboratory. However, neither the
thondy clerk nor the Excise Guard through whom the
sample was sent to the laboratory was examined in
this case to prove the tamper-proof despatch of the
sample to the laboratory and consequently, the
tamper-proof despatch of the sample to the laboratory
could not be established by the prosecution, which is
fatal to the prosecution. For the said reason also,
the revision petitioner is entitled to benefit of
doubt. The courts below did not consider the above
vital aspects while appreciating the evidence and
consequently, the conviction and sentence passed by
the courts below cannot be sustained." (Emphasis
supplied)
18. As mentioned above, this Court is in the dark as
to the date on which the sample was handed over to the
Excise official concerned, who received the same from the
court for delivering to the Chemical Examiner's
laboratory. It is the admitted case of the prosecution
that the sample remained in the custody of the property
clerk of the court and Sri.Thankachan Abraham, the
Excise Guard who delivered the sample 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
effect of this omission is that the prosecution failed to
CRL.A NO. 2523 OF 2007
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 [(1980) 3) SCC 303]).
19. The sample reached the Chemical Examiner's
laboratory on 26.09.2003, but the same was analysised
only on 29.10.2004.
20. The learned counsel for the appellant contended
that the delay in analysis of the sample, which has not
been explained satisfactorily, is also fatal to the
prosecution. While dealing with the question of delay in
analysis 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
CRL.A NO. 2523 OF 2007
explanation. These are all suspicious aspects, the
benefit of which must go to the accused."
21. In the instant case, the delay of more than one
year in the analysis of the sample remains unexplained.
22. In Vijay Pandey v. State of U.P (AIR 2019 SC
3569), the Apex Court held that mere production of the
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.
23. 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.
24. 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
CRL.A NO. 2523 OF 2007
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
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. He is acquitted of the charge levelled
against him. He is set at liberty.
The Crl.Appeal is allowed as above.
Sd/-
K. BABU, JUDGE
AS
