Mani vs State Of Kerala
2021 Latest Caselaw 16193 Ker

Crl.A No.2216/2006              1



             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                    PRESENT
                     THE HONOURABLE MR.JUSTICE K. BABU
 WEDNESDAY, THE 4TH DAY OF AUGUST 2021 / 13TH SRAVANA, 1943
                          CRL.A NO. 2216 OF 2006
   AGAINST THE ORDER/JUDGMENT IN SC 239/2006 OF ADDITIONAL
          SESSIONS COURT (ADHOC)-II, THODUPUZHA, IDUKKI
APPELLANT/ACCUSED No.1:

             MANI
             S/O MANI,MARAYOOR PANCHAYATH, CHERUVADU ST.COLONY,
             MARAYOOR VILLAGE.

             BY ADVS.
             SRI.C.M.TOMY
             SRI.MATHEW SKARIA



RESPONDENT/COMPLAINANT:

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

             BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

             SRI. ASHI M.C. (P.P)




       THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.A No.2216/2006           2




                               K.BABU, J.
                 =========================
                         Crl.A No.2216 of 2006
                 ==========================
                  Dated this the 4th day of August, 2021



                                 JUDGMENT

Challenge in this appeal is to the judgment dated 20.10.06

passed by the Additional Sessions court (Adhoc)-II, Thodupuzha

in S.C. No.239/2006.

2. By the impugned judgment, the appellant and the

other accused were convicted of the offence punishable under

Section 8(2) of the Abkari Act.

3. The accused No.1 is the appellant herein.

4. The prosecution case is that on 30.5.2005 at 11.10

a.m., the appellant and the other accused were found possessing

9 litres of illicit arrack in a 10 litre can at the house of the

former at Cheruvadu S.T.colony. The offence was detected by

the Assistant Police Sub Inspector, Marayoor Police Station.

5. After completion of the 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, Devikulam. 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 them for the offence punishable under Section 8(2) of

the Abkari Act. Both the accused pleaded not guilty and

therefore, they 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 6, Exts.P1 to P7 and M.O.1.

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. After completion

of the evidence, the trial court heard the matter under Section

232 Cr.P.C and found that there is evidence against the accused

and hence they were called upon to enter on their defence and

to adduce evidence if any, they may have in support thereof.

8. The learned trial court after hearing both sides, found

that the accused are guilty of offence punishable under Section

8(2) of the Abkari Act and they were convicted thereunder. The

accused were sentenced to undergo rigorous imprisonment for

one year each and to pay a fine of Rs.1,00,000/- (Rupees One

lakh only) each.

9. Heard Adv. Sri. C.M.Tomy, the learned counsel

appearing for the appellant/accused No.1 and Sri. M.C.Ashi, the

learned Public Prosecutor appearing for the respondent.

10. The learned counsel for the appellant contended that

the prosecution failed to establish that the contraband

substances allegedly seized from the possession of the accused

eventually reached the Chemical Examiner's laboratory.

11. The learned Public Prosecutor, per contra, submitted

that the prosecution could well establish the charge against the

accused.

12. The only point that arises for consideration is whether

the conviction entered and the sentence passed against the

appellant/accused No.1 are sustainable or not.

THE POINT.

13. PW5, the detecting officer, has given evidence that on

30.5.2005 at 11.10.a.m., on getting information that the two

accused were apprehended by the local people for having

possessed illicit arrack, he proceeded to the place of occurrence

and arrested them. PW5 seized the contraband substance from

the possession of the accused. He collected sample in two 180

ml bottles and sealed the same.

14. PW1, the President of the Marayoor Grama

Panchayat, did not support the prosecution case. PWs.2 to 4 also

did not support the prosecution.

15. PW6 submitted final report.

16. The learned counsel for the appellant/accused

contended that the prosecution has not succeeded in

establishing that the contraband substances allegedly recovered

from the place of occurrence eventually reached the hands of the

chemical examiner.

17. The detecting officer has not given evidence as to the

nature of the seal affixed on the bottle containing the

contraband articles.

18. In Bhaskaran v. State of Kerala and another

(2020 KHC 5296), while considering a case in which the nature

of the seal used was not mentioned in the seizure mahazar and

the detecting officer failed to give evidence as to the nature of

the seal, this Court held thus:

"21. 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 Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only

when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)"

(Emphasis supplied)

19. In Krishnadas v. State of Kerala (2019 KHC 191)

this Court held thus:

"7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty." (Emphasis supplied).

20. The learned counsel further submitted that Ext.P6,

the copy of the forwarding note, does not contain the name of

the official with whom the sample was sent for chemical analysis

and the same was not counter signed by the learned magistrate

concerned. The date on which the sample was forwarded to the

laboratory is also not recorded in Ext.P6. Ext.P7, the certificate

of chemical analysis, would show that the bottles containing

sample were received in the chemical examiner's laboratory as

per letter No.PR72/05 dated 4.6.2005 of the Judicial First Class

Magistrate, Devikulam. The necessary inference is that in the

absence of any contra evidence, the bottles containing the

sample were handed over to the police official concerned on

4.6.2005. But Ext.P7 would further show that the bottles

containing the sample were received in the laboratory only on

2.11.2005, almost after four months. The covering letter dated

4.6.2005 of the Judicial First Class Magistrate court, Devikulam

would show that the bottles containing the sample were handed

over to Sri.Jose Varghese, Police constable No.2354.

21. While dealing with a similar fact situation this Court

in Viswanadhan v. State of Kerala (2016 (3) KHC 38 held thus:

"Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused."

22. The prosecution has not offered any satisfactory

explanation for this delay. The prosecution ought to have

examined the police official concerned who received the sample

on 4.6.2005 from the court, to establish the tamper proof

despatch of the sample.

23. It is the admitted case of the prosecution that the

sample remained in the custody of the property clerk of the

court and Sri. Jose Varghese, the police official concerned. None

of the 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 [AIR(1980)SC 1314].

24. 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 the contraband

substance cannot be conclusive proof by itself. The sample

seized and that tested have to be co-related.

25. 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 appellant/accused No.1 is entitled to benefit of doubt

arising from the absence of link evidence as discussed above.

26. The upshot of the above discussion is that the

conviction entered by the court overlooking these vital aspects of

the matter cannot therefore be sustained. The

appellant/accused No.1 is therefore not guilty of the offence

punishable under Section 8(2) of the Abkari Act. He is acquitted

of the charge. He is set at liberty.

This Crl.Appeal is allowed as above.

Sd/-

K. BABU JUDGE al/-