Komalan vs State Of Kerala
2021 Latest Caselaw 16888 Ker

            IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
               THE HONOURABLE MR.JUSTICE K. BABU
  THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
                      CRL.A NO. 966 OF 2007
     AGAINST   JUDGMENT DATED 07.05.2007 IN SC 782/2004 OF
 ADDITIONAL SESSIONS FAST TRACK COURT-I,         THIRUVANANTHAPURAM


APPELLANT/ACCUSED:

           KOMALAN
           S/O. PONNAPPAN, SHEEBA BHAVAN, TC.72/1359,
           PARAMBIL LANE, BALAVAN NAGAR, MUTTATHARA VILLAGE,
           THIRUVANANTHAPURAM.

           BY ADV SUMAN CHAKRAVARTHY



RESPONDENT/COMPLAINANT & STATE:

           STATE OF KERALA
           REPRESENTED BY THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

           BY PUBLIC PROSECUTOR SRI. M.C. ASHI


    THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO.966 OF 2007

                                   2


                      K. BABU J.
          ------------------------------------
                  Crl.A.No.966 of 2007
          ------------------------------------
               Dated this the 12th day of August, 2021

                       J U D G M E N T

Aggrieved by the judgment dated 07.05.2007, passed

by the learned Additional Sessions Judge, Fast Track

Court No.I, Thiruvananthapuram in SC.No.782/2004, the

accused has preferred this appeal.

2. By the impugned judgment the accused was

convicted of the offence punishable under Section 55(a)

r/w Section 8(2) of the Kerala Abkari Act.

3. The prosecution case is that on 06.12.2001 at

about 06.00 P.m., the accused was found in possession of

3 liters of arrack in MO1 black Can along the side of the

MLA road leading to Muttathara Perunelli Junction from

Manacaud. The offence was detected by PW1, the Excise

Preventive Officer of Excise Range Office,

Thiruvananthapuram.

4. Final report was submitted against the accused CRL.A NO.966 OF 2007

for the offence punishable under Section 55(a) r/w

Section 8(2) of the Abkari Act before the Judicial First

Class Magistrate Court-II, Thiruvananthapuram.

5. The case was committed to the Sessions Court,

Thiruvananthapuram, 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 55(a) r/w 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 4, Exts.P1 to P6 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.

The learned trial court, after hearing the arguments CRL.A NO.966 OF 2007

addressed from both sides, found that the accused is

guilty of the offence under Section 55(a) r/w Section

8(2) of the Abkari Act and he was convicted thereunder.

The accused was sentenced to undergo rigorous

imprisonment for a term of two years and to pay a fine of

Rs.1,00,000/-.

8. Heard Sri.Suman Chakravarthy, the learned

counsel appearing for the appellant and Sri.M.C.Ashi, the

learned Public Prosecutor appearing for the respondent.

9. The learned 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

whether the conviction entered and the sentence passed CRL.A NO.966 OF 2007

against the accused are sustainable or not.

THE POINT

12. On 06.12.2001 PW1 was on patrol duty. At about

05.55 p.m., he found the accused carrying MO1 Can at

the place of occurrence. On inspection PW1 ascertained

that the Can contained 3 liters of illicit arrack. The

accused was arrested and the contraband substance was

seized by PW1. He prepared Ext.P1 seizure mahazar.

13. PW3, the Excise Preventive Officer who had

accompanied PW1 in the search and seizure, has given

evidence in support of the version given by PW1. PW2,

the property clerk of the court, gave evidence that she

had drawn sample from the contraband substance produced

before the court. PW4 conducted investigation and

submitted final report.

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 CRL.A NO.966 OF 2007

laboratory:

(a) The prosecution failed to establish that the

contraband substance stated to have been seized

from the place of occurrence reached the court

in a tamper proof condition.

(b) No sample was drawn at the scene of occurrence

by the detecting officer.

(c) The forwarding note/requisition for sending the

sample has not been produced and marked.

(d) There is no evidence to show that the specimen

impression of the seal had been provided to the

Chemical Examiner's laboratory.

15. The detecting officer has not given evidence as

to the nature and description of the seal affixed on MO1

Can. Ext.P1, seizure mahazar, is also silent about the

nature and description of the seal used by the detecting

officer.

16. The specimen impression of the seal used by the

detecting officer to seal MO1 had not been produced

before the court. The requirement of evidence regarding CRL.A NO.966 OF 2007

the nature and description of the seal used by the

detecting officer is to enable the court to satisfy the

genuineness of the articles produced before the court. If

the specimen impression of the seal used by the detecting

officer is produced before the court, the official who

receives the property in the court can ascertain that the

seal affixed on the same is getting tallied with the

specimen impression produced.

17. The admitted case of the prosecution is that

sample was not drawn at the scene of occurrence by the

detecting officer. PW2, the property clerk of the court,

gave evidence that she had drawn sample from the

contraband substance produced. She would further state

that the sample was drawn as per the instructions of the

learned Magistrate.

18. I have gone through the materials placed before

the Court. There is nothing to show that the learned

Magistrate directed PW2 to take any specified quantity

of arrack from MO1 as sample and to forward the same to

the Chemical Examiner's laboratory. No record of CRL.A NO.966 OF 2007

proceedings was brought before the Court to convince

that the learned Magistrate directed or supervised the

process of taking sample in the court by PW2. The

sanctity of the act of taking sample by PW2 without any

specific direction of the learned Magistrate is under

challenge.

19. PW2 gave evidence that she collected 180 ml of

arrack from the Can available in the court as per the

requisition produced. The requisition/forwarding note

has not been produced and marked in evidence. The

relevance of the requisition/forwarding note is that it

contains the following details:

(a) The quantity of the contraband substance taken

as sample.

(b) The specimen impression of the seal affixed on

the bottle containing the sample.

(c) The official with whom the sample was sent to

the Chemical Examiner's laboratory.

(d) The date on which the sample was taken.

20. In the absence of a forwarding note marked and CRL.A NO.966 OF 2007

produced it cannot be held that prosecution could

establish the tamper proof despatch of the sample to the

laboratory.

21. 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."

22. 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 CRL.A NO.966 OF 2007

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".

23. Though PW2 stated that sample seal was

forwarded to the Chemical Examiner's laboratory, the

prosecution could not convince the court regarding the

nature and description of the seal. No contemporaneous

records were seen prepared and produced before the court

to convince the procedures followed in the taking of

sample. Ext.P6 would contain a statement that the seal

on the bottle was intact and found tallied with the

sample seal provided. In the absence of any convincing

evidence that the specimen impression of the seal was

forwarded to the Chemical Examiner, the afore statement

is not acceptable.

24. Yet another aspect to be considered is that

there is no evidence to show the name of the official

with whom the sample was forwarded to the Chemical CRL.A NO.966 OF 2007

Examiner's laboratory. In Ext.P6, certificate of

chemical analysis, the space meant for writing the name

of the Excise Guard through whom the sample was

delivered to the laboratory is left unfilled. The

prosecution failed to establish the custody of the

bottle containing the sample after the same was

forwarded to the Chemical Examiner's laboratory, as

there is no evidence to ascertain the official who

received the sample from the court and delivered the

same to the Chemical Examiner's laboratory. The date on

which the said official received the sample is also not

available. The lack of evidence regarding the custody of

the sample during the interregnum between the despatch

of the same from the court and the date on which the

same reached the laboratory is a missing link in the

chain of evidence to connect the accused with the

contraband substance. In the instance case prosecution

failed to establish that:

(a) MO1 Can was produced before the court in a

tamper proof condition.

CRL.A NO.966 OF 2007

(b) The contraband substance actually recovered

from the possession of the accused was taken

as sample and forwarded to the Chemical

Examiner's laboratory.

(c) The sample drawn in the court reached the

Chemical Examiner's laboratory without

tampering.

25. In such a situation no evidentiary value can be

attached to Ext.P6 certificate of chemical analysis.

26. 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.

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 CRL.A NO.966 OF 2007

accused. (see: Sathi v. State of Kerala [2007(1) KHC

778]).

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 is therefore not guilty of the

offence punishable under Section 55(a) r/w 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