Kerala High Court
Chandran P.P vs State Of Kerala on 4 August, 2021
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. 2250 OF 2008
AGAINST THE JUDGMENT DATED 25.09.2008 IN SC.NO.535/2006 OF
ADDITIONAL SESSIONS (ADHOC) FAST TRACK COURT-III,
PATHANAMTHITTA
APPELLANT/ACCUSED:
CHANDRAN P.P.
S/O.PADMANABHAN, BLOCK NO-75,
EZHIKKADU HARIJAN COLONY, KURICHIMUTTAM KARA,
KIDANGANNUR VILLAGE, PATHANAMTHITTA.
BY ADV SRI.AJITH MURALI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.M.C.ASHI, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2250 OF 2008
2
K. BABU J.
------------------------------------
Crl.A.No.2250 of 2008
------------------------------------
Dated this the 4th day of August, 2021
J U D G M E N T
Aggrieved by the judgment dated 25.09.2008, passed by
the Additional Sessions (Adhoc), Fast Track Court-III,
Pathanamthitta in S.C.No.535/2006, the accused has
preferred this appeal.
2. The trial court convicted the accused for the
offence punishable under Section 8(2) of the Abkari Act.
3. The prosecution case is that on 18.01.1999 at
about 06.15 p.m., the accused was found in possession of
750 ml of arrack in a 750 ml bottle on the Kidangannur-
Chengannur PWD road. The offence was detected by the
Excise Preventive Officer in charge of the Excise
Inspector, Excise Range Office, Pathanamthitta.
4. After completion of investigation final report
was submitted against the accused for the offence
CRL.A NO. 2250 OF 2008
punishable under Section 8(2) of the Abkari Act before
the Judicial First Class Magistrate Court-I,
Pathanamthitta.
5. The case was committed to the Sessions Court,
Pathanamthitta, 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 7, Exts.P1 to P7 and MO.1.
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. 2250 OF 2008
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
one year and to pay a fine of Rs.1,00,000/-.
8. Heard Sri.Ajith Murali, the learned counsel
appearing for the appellant/accused and Sri.M.C.Ashi, the
learned Public Prosecutor appearing for the respondent.
9. The counsel for the appellant/accused contended
that the prosecution failed to establish the tamper-proof
despatch of the sample to the laboratory so as to
conclude 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. 2250 OF 2008
whether the conviction entered and the sentence passed
against the accused are sustainable or not.
THE POINT
12. PW2, the Excise Preventive Officer in charge of
the Excise Inspector, Excise Range Office, Pathanamthitta
on 18.09.1999 found the accused carrying a plastic bottle
through the Kidangannur-Chengannur PWD road. PW2 has
given evidence that after ascertaining that the bottle in
the possession of the accused contained illicit attack,
the same was seized as per Ext.P3 seizure mahazar. The
accused was arrested from the spot. PW3, who was in the
Excise team led by PW2, supported the prosecution case.
13. PWs.6 and 7, the independent witnesses, did not
support the case of the prosecution regarding the seizure
and arrest. PW4 registered Ext.P4 Crime and Occurrence
report.
14. PW1, the property clerk of the Judicial First
Class Magistrate Court-I, Pathanamthitta, has given
evidence that the property was produced before the court
CRL.A NO. 2250 OF 2008
on 19.01.1999. He further deposed that he had taken
sample from MO1 and sent the same through Sri.Rajan, an
Excise Guard. PW5 conducted investigation and submitted
final report before the Court against the accused.
15. 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) PW2, the detecting officer, has not given
evidence as to the nature and description of the
seal that he affixed on MO1 bottle at the time of
seizure.
(b) Ext.P3 seizure mahazar, does not contain any
narration as to the nature and description of
the seal affixed on the bottle containing the
sample.
(c) There is no evidence to show that the specimen
CRL.A NO. 2250 OF 2008
impression of the seal affixed on MO1 bottle by
the detecting officer was produced before the
court so as to ensure the genuineness of the
contraband substance produced before the court.
(d) The prosecution failed to establish that the
specimen impression of the seal affixed on the
bottle containing the sample was provided to the
Chemical Examiner's laboratory.
(e) There is no satisfactory explanation for the
delay in the analysis of the sample at the
Chemical Examiner's laboratory.
16. The prosecution case is that the accused was
found in possession of 750 ml of illicit arrack in a 750
ml bottle. According to PW2 immediately after seizure of
the bottle from the possession of the accused he had
sealed the bottle. PW2 has not given evidence as to the
nature and description of the seal affixed on MO1 bottle.
The specimen impression of the seal used by the detecting
officer (PW2) to seal MO1 bottle at the scene of
CRL.A NO. 2250 OF 2008
occurrence was not produced before the court.
17. In Bhaskaran v. State of Kerala and another
(2020 KHC 5296) and Krishnadas v. State of Kerala (2019
KHC 191), this Court held that the detecting officer 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.
18. In the instant case, Ext.P3, seizure mahazar,
does not contain the nature and description of the seal
stated to have been affixed on MO1 bottle by the
detecting officer. Neither PW2 nor PW3 has given evidence
as to nature of the seal used at the scene of occurrence.
19. In the instant case, admittedly, no sample was
drawn by the detecting officer at the scene of
occurrence. PW1, the property clerk of the court, gave
evidence that he had taken sample from the contraband
substance produced before the court. PW1 further gave
evidence that the sample was forwarded to the Chemical
Examiner's laboratory on 21.05.1999, but the said date
CRL.A NO. 2250 OF 2008
was not recorded in any of the contemporaneous documents
prepared. It is important to note that there is nothing
to show that any record was prepared in the court
concerned evidencing any direction given by the
Magistrate to take a specified measure of the sample from
the contraband substance produced. PW1 has not given
evidence as to the date on which the sample was drawn. It
is pertinent to note that PW1 has not given evidence as
to whether the specimen impression of the seal affixed on
the bottle containing the sample was forwarded to the
Chemical Examiner's laboratory. There is absolutely no
evidence to convince the court that the specimen
impression of the seal was provided to the Chemical
Examiner for his verification and to ensure that the
specimen impression of the seal so provided was tallied
with the seal affixed on the bottle containing the
sample.
20. In Ext.P7, certificate of chemical analysis, it
is stated that the seal on the bottle was intact and
CRL.A NO. 2250 OF 2008
found tallied with sample seal provided. In the absence
of any evidence to show that the specimen impression of
the seal affixed on the bottle containing the sample was
provided to the Chemical Examiner's laboratory, the
certification regarding the seal on the bottle in Ext.P7
cannot be accepted and no evidentiary value can be
attached to Ext.P7. PW1 admitted that no entry was made
in any of the relevant documents to ascertain the date on
which the sample was forwarded to the Chemical Examiner's
laboratory. The covering letter referred to in Ext.P7 is
undated. The evidence given by PW1, almost 9 years after
the date on which the sample was forwarded, that the
sample was forwarded to the laboratory on 21.05.1999,
without even referring to any contemporaneous document,
is not credible.
21. The inevitable conclusion is that this Court is
in the dark as to the date on which the sample was handed
over to the Excise Guard who delivered the same to the
Chemical Examiner's laboratory. It is also important to
CRL.A NO. 2250 OF 2008
note that there is no convincing evidence to show that
the sample was sealed in the court.
22. In Rajamma v. State of Kerala [2014 (1) KLT
506], this Court held that in the absence of convincing
evidence as to the production of the specimen impression
of the seal to the Chemical Examiner, no evidentiary vale
can be attached to the Chemical analysis report.
23. Ext.P7, the certificate of chemical analysis,
would show that the sample reached the Chemical
Examiner's laboratory on 21.05.1999, but the same was
analysised only on 25.04.2000.
24. 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
CRL.A NO. 2250 OF 2008
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."
25. In the instant case, the delay of almost one
year in the analysis of the sample remains unexplained.
26. 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.
27. 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.
CRL.A NO. 2250 OF 2008
28. 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.
29. 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
