Kerala High Court

Shaiju @ Shaji vs State Of Kerala, Rep. By on 3 August, 2021

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
               THE HONOURABLE MR.JUSTICE K. BABU
   TUESDAY, THE 3RD DAY OF AUGUST 2021 / 12TH SRAVANA, 1943
                     CRL.A NO. 1479 OF 2007
  AGAINST THE JUDGMENT IN SC 420/2006 OF THE III ADDITIONAL
   SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, THRISSUR
APPELLANT/ACCUSED:

          SHAIJU @ SHAJI
          S/O.ANTHONY, THENGILAN HOUSE,
          PERAMBRA VILLAGE, VAZHAKUNNAM DESOM.

          BY ADV SRI.C.P.PEETHAMBARAN



RESPONDENT/COMPLAINANT:

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

          BY PUBLIC PROSECUTOR SRI. M.C. ASHI




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A No.1479 of 2007                 2




                                  K.BABU, J.
                        =========================
                            Crl.A No.1479 of 2007
                        ==========================
                          Dated this the 3rd day of August, 2021



                                 JUDGMENT

Aggrieved by the judgment dated 12.7.2007 passed by the

III Additional Sessions Judge (Adhoc), Fast Track Court No.1,

Thrissur in S.C.No.420/2006, the accused has preferred this

appeal. The trial court convicted the accused for the offence

punishable under Section 63 of the Abkari Act.

2. The prosecution case is that on 5.7.2005 at 3.45 pm.,

the accused was found in possession of about 19 litres of Indian

made foreign liquor in the north-western room of the building

having door No.IX/390 of Chalakkudy Municipality situated at

Vazhakunnu desom. The Inspector of Police, Chalakkudy

detected the offence.

3. After completing investigation, final report was

submitted against the accused for the offences punishable under

Sections 55(a) and (i) of the Abkari Act before the Judicial First

Class Magistrate Court, Chalakkudy. The case was committed to

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

III Additional Sessions Court, (Adhoc), Fast Track Court No.I,

Thrissur. On appearance of the accused charge was framed

against him for the offences punishable under Sections 55(a) and

(i) of the Abkari Act. The accused pleaded not guilty and

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

offences.

4. The evidence for the prosecution consists of oral

evidence of PWs 1 to 5, Exts.P1 to P6 and MOs 1 to 16.

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 63 of the Abkari Act and he was

convicted thereunder. He was sentenced to undergo simple

imprisonment for a term of three months and to pay a fine of

Rs.1,000/- under Section 63 of the Abkari Act.

6. Heard Sri.C.P.Peethambaran, the learned counsel

appearing for the appellant/accused and Sri.M.C.Ashi, the

learned Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant/accused

contended that the prosecution has not succeeded in

establishing that the contraband substance allegedly recovered

from the place of occurrence was subjected to chemical analysis

in 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. PW3, the Inspector of Police, Chalakkudy, has given

evidence that on 5.7.2005, on getting reliable information that

the accused was engaged in the sale of Indian made foreign

liquor at his residence, he searched the residence and recovered

19 litres of Indian made foreign liquor. PW3 prepared Ext.P1

search list. The accused was arrested from the spot. PW3

collected liquor from four bottles, each containing 180 ml, as

samples and sealed the same. PW3 also recovered a sum of

Rs.260/- from the possession of the accused.

11. PWs 1 and 2, the independent witnesses, did not

support the prosecution case. PW4, the Police Constable who

had accompanied PW3 in the search and seizure, supported the

prosecution case. PW5 conducted investigation and submitted

final report.

12. The learned counsel for the appellant/accused relied

on the following aspects to contend that the prosecution failed to

establish that the contraband substance allegedly recovered

from the possession of the accused was subjected to analysis in

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 search list, the contemporaneous

document evidencing seizure, does not contain any

narration as to the nature and description of the

seal used by the detecting officer.

c) There is no evidence to show that the

specimen impression of the seal used by the

detecting officer was produced before the court

and forwarded to the Chemical Examiner's

laboratory.

13. PW3 is the detecting officer. He has not given

evidence as to the nature and description of the seal stated to

have been affixed on the bottles containing the sample. PW4,

the official witness who had accompanied PW3, also has not

given evidence as to the nature of the seal used by the detecting

officer. Ext.P1 search list is silent regarding the nature and

description of the seal affixed on the bottles containing the

sample.

14. There is no evidence to show that the specimen

impression of the seal had been produced before the court and

forwarded to the Chemical Examiner's laboratory. 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 produced in the court. 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. (See: Bhaskaran v. State of

Kerala and another (2020 KHC 5296), Krishnadas v.

State of Kerala (2019 KHC 191)

15. The learned counsel for the appellant/accused

contended that there is nothing to show that the specimen

impression of the seal was provided to the Chemical Examiner

for verification. The prosecution failed to adduce any evidence

as to the nature and description of the seal stated to have been

used by the detecting officer and to show that the same had

been provided to the Chemical Examiner.

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

specimen impression of the seal used 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.

17. In Ramachandran v. State of Kerala (2021(1)

KLT 793) while dealing with a case in which forwarding

note was not produced and marked, 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."

18. 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".

19. In view of the fact that there is no evidence to

convince the court that the specimen impression of the seal had

been provided to the Chemical Examiner no evidentiary value

can be given to Ext.P6 chemical analysis report.

20. 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.

21. 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