Kerala High Court
Rajan,S/O Narayanan vs State Of Kerala 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. 2335 OF 2006
AGAINST THE JUDGMENT DATED 20.11.2006 IN SC 199/2006 OF
ADDITIONAL SESSIONS JUDGE, (ADHOC-I), KOTTAYAM
APPELLANT/ACCUSED NO.1:
RAJAN,S/O NARAYANAN,
NARIKUZHIYIL VEEDU, KALAYAKANDAM BHAGOM,
MELAMBARA KARA.
BY ADVS.
C.C.THOMAS (SR.)
NIREESH MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY SUB INSPECTOR OF POLICE,
ERATTUPETTA POLICE STATION, KOTTAYAM
REP. BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY SRI.M.C.ASHI, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2335 OF 2006
2
K. BABU J.
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Crl.A.No.2335 of 2006
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Dated this the 3rd day of August, 2021
J U D G M E N T
Aggrieved by the judgment dated 20.11.2006, passed by
the learned Additional Sessions Judge, (Adhoc-I),
Kottayam in S.C.No.199/2006, the accused No.1 has
preferred this appeal.
2. By the impugned judgment the accused No.1 was
convicted of the offences punishable under Sections 55(b)
and 55(g) of the Kerala Abkari Act.
3. The prosecution case is that on 13.03.2005 at
about 04.15 p.m., the appellant and the other accused
(A2) were found distilling illicit arrack in the building
bearing door No.TP-1/33 at Melamparakara in Thalappalam
Village. The offence was detected by the S.I of Police,
Erattupetta Police Station.
4. After completion of investigation final report
CRL.A NO. 2335 OF 2006
was submitted against the appellant and the other accused
for the offences punishable under Sections 55(b) and
55(g) of the Abkari Act before the Judicial First Class
Magistrate Court, Erattupetta.
5. The case was committed to the Sessions Court,
Kottayam, from where it was made over to the Trial Court.
On appearance of the accused charges were framed against
them for the offences punishable under Sections 55(b) and
55(g) of the Abkari Act. Both the accused pleaded not
guilty and therefore, they came to be tried by the trial
court for the aforesaid offences.
6. The evidence for the prosecution consists of the
oral evidence of PWs.1 to 5, Exts.P1 to P7 and MOs.1 to
6.
7. After closure of the evidence on behalf of the
prosecution, the statements of the accused under Section
313 Cr.P.C were recorded. They pleaded innocence. The
trial court heard the matter under Section 232 Cr.P.C.
and found that there was evidence against the appellant
and the other accused and hence they were called upon to
CRL.A NO. 2335 OF 2006
enter on their defence and to adduce evidence, if any,
they may have in support thereof. The learned trial
court, after hearing arguments addressed from both sides,
found that the appellant/accused No.1 is guilty of
offences under Sections 55(b) and 55(g) of the Abkari Act
and he was convicted thereunder. Accused No.2 was
acquitted of the charges. The appellant/accused No.1 was
sentenced to undergo rigorous imprisonment for a term of
one year and to pay a fine of Rs.1,00,000/-.
8. Heard Sri.Nireesh Mathew, the learned counsel
appearing for the appellant/accused No.1 and
Sri.M.C.Ashi., the learned Public Prosecutor appearing
for the respondent.
9. The counsel for the appellant/accused No.1
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,
CRL.A NO. 2335 OF 2006
submitted that the prosecution could well establish the
charges against the accused.
11. 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
12. PW3, the S.I. of Police, Erattupetta Police
Station, on 13.03.2005 at about 3.30 p.m., on getting
reliable information that the appellant and the other
accused were engaged in distilling illicit arrack in the
building bearing door No.TP-1/33 at Melamparakara in
Thalappalam Village, searched therein and found that the
accused were distilling arrack. PW3 has given evidence
that the accused were found boiling Wash in an Aluminium
vessel in the kitchen room of the building and collecting
arrack in a bottle. PW3 seized the contraband substances
and the other utensils found in the building in the
possession of the accused. PW3 seized a bottle containing
350 ml of illicit arrack in a 750 ml bottle and another
bottle containing 450 ml of arrack in a 500 ml bottle. He
CRL.A NO. 2335 OF 2006
also collected 150 ml arrack each in two 375 ml bottles
as sample. PW1 sealed the bottles containing the sample
and the other two bottles.
13. PWs1 and 2, the independent witnesses, did not
support the prosecution case. PW4 conducted investigation
and submitted final report before the Court against the
accused. PW5, Secretary of the Thalappalam Grama
Panchayath, gave evidence that the building involved was
in the ownership of one Kunjan Narayanan, the father of
the appellant.
14. The learned counsel for the appellant/accused
No.1 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 search list, the contemporaneous document
CRL.A NO. 2335 OF 2006
evidencing seizure, does not contain any
narration as to the nature and description of
the seal affixed on the bottles containing the
sample.
(c) There is no convincing evidence that the bottles
containing the sample were forwarded to the
Chemical Examiner's laboratory in a tamper proof
condition.
(d) There is no satisfactory explanation for the
delay in the analysis of the sample at the
Chemical Examiner's laboratory.
15. I have gone through the oral evidence of PW3,
the detecting officer. He has not given evidence as to
the nature and description of the seal affixed on the
bottles containing the sample. Ext.P1, search list, is
also silent regarding the nature and description of the
seal stated to have been affixed on the bottles
containing the sample.
16. In Bhaskaran v. State of Kerala and another
(2020 KHC 5296) and Krishnadas v. State of Kerala (2019
CRL.A NO. 2335 OF 2006
KHC 191), this Court held that the detecting officer, who
has drawn the sample, has to give evidence as to the
nature of the seal affixed on the bottles containing the
sample. The nature of the seal used shall be mentioned in
the seizure mahazar.
17. The evidence regarding the nature and
description of the seal affixed on the bottles containing
the sample is highly required to enable the Court to
satisfy the genuineness of the sample produced in the
court. In the instant case, there is absolutely no
evidence as to the nature and description of the seal
stated to have been used by the detecting officer.
18. Learned counsel for the appellant/ accused No.1
further contended that Ext.P5, 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 did not
mention the date on which he made his initial thereon.
This is more relevant, particularly when the name of the
official with whom the sample was sent for analysis is
CRL.A NO. 2335 OF 2006
not mentioned. 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
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
CRL.A NO. 2335 OF 2006
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)
19. In the instance case the prosecution has not
examined either the thondy clerk of the court or the
Police official to prove the tamper proof despatch of the
sample to the laboratory.
20. This Court is in the dark as to the date on
which the sample was handed over to the Police official
concerned, who received the same from the court for
delivering to the Chemical Examiner's laboratory. Ext.P5
is silent on this aspect.
21. Ext.P6, certificate of chemical analysis, would
show that the bottles containing the sample were received
in the laboratory through the Police Constable No.5044.
The sample remained in the custody of the property clerk
of the court and the Police official who delivered the
same to the Chemical Examiner's laboratory. None of these
CRL.A NO. 2335 OF 2006
witnesses were examined by the prosecution to prove that
while in their custody the seals were 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
[(1980) 3) SCC 303]).
22. Ext.P6, the certificate of Chemical analysis,
contains a certification that the seals on the bottles
were intact and found tallied with the sample seal
provided. The date of preparation of Ext.P5 is not
evident. It was produced before the court on 08.04.2005.
The 'impression' seen against the space provided for
specimen seal is not legible. In the absence of any
convincing evidence to show that a legible specimen
impression of the seal was forwarded to the Chemical
Examiner's laboratory, the certification contained in
Ext.P6 to the effect that the seals on the bottles were
intact and found tallied with the sample seal provided
CRL.A NO. 2335 OF 2006
cannot be accepted.
23. While considering a fact situation in which the
prosecution failed to establish that the specimen
impression of the seal was not produced before the court
and forwarded to the Chemical Examiner, this Court in
Rajamma v. State of Kerala [2014 (1) KLT 506], 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".
24. In view of the fact that there is no evidence to
convince the court that the specimen seal or the specimen
impression of the seal had been provided to the Chemical
Examiner, no evidentiary value can be given to Ext.P6
CRL.A NO. 2335 OF 2006
chemical analysis report.
25. In the instant case, the prosecution failed to
establish that the specimen impression of the seal, as
required, had been forwarded to the Chemical Examiner's
laboratory. Hence, Ext.P6 has no evidentiary value.
26. Ext.P6, the certificate of Chemical analysis,
would show that the sample reached the Chemical
Examiner's laboratory on 16.04.2005, but the same was
analysised only on 10.03.2006.
27. The learned counsel for the appellant/accused
No.1 contended that the delay in analysis of the sample,
has not been explained satisfactorily and hence it is
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
CRL.A NO. 2335 OF 2006
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."
28. In the instant case, the delay of more than nine
months in the analysis of the sample remains unexplained.
29. 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.
30. 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.
31. In the instant case, the prosecution was unable
to establish the link connecting the accused with the
CRL.A NO. 2335 OF 2006
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.
32. 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 No.1 is therefore not
guilty of the offences punishable under Sections 55(b)
and 55(g) of the Abkari Act. He is acquitted of the
charges levelled against him. He is set at liberty.
The Crl.Appeal is allowed as above.
Sd/-
K. BABU, JUDGE
AS
