Kerala High Court

Sasidharan vs State Of Kerala on 4 February, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS

 THURSDAY, THE 04TH DAY OF FEBRUARY 2021 / 15TH MAGHA,1942

                     CRL.A.No.279 OF 2007

AGAINST THE JUDGMENT IN SC 1558/2001 OF ADDITIONAL SESSIONS
  JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM


APPELLANT/ACCUSED:

           SASIDHARAN,
           S/O. KRISHNAN,
           MOOZHIYIL PUTHEN VEEDU,
           ANAD MURI,PALODE VILLAGE,
           NEDUMANGAD TALUK.

           BY ADV. SRI.A.RAJASIMHAN

RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY EXCISE INSPECTOR,
           VAMANAPURAM.


           ADV.DHANIL M.R., PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
04.02.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.279/07                  -:2:-




                                  JUDGMENT

Dated this the 4th day of February, 2021

The accused in S.C. No.1558 of 2001 on the files of the

Additional Sessions Court, Fast Track (Adhoc) IV,

Thiruvananthapuram, is the appellant. By judgment dated

27.12.2006, he was convicted for the offence under Sections 8(1)

and (2) of the Abkari Act and sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.1,00,000/- and in

default of payment of fine to undergo rigorous imprisonment for six

months.

2. The prosecution case was that on 29.11.1999, PW1 while

conducting patrol duty, found the accused walking along

Thannimoodu-Perayam road carrying a black can. Suspecting that

the accused was indulging in some offensive activities, he was

questioned and on search it was found that the can contained arrack

and hence the same was seized. According to the prosecution, the

can containing the arrack was sealed and after registration of the

crime, the accused along with the materials were produced before

the learned Magistrate, who remanded the accused to custody.

Pursuant to completion of investigation conducted by PW2 and PW3,

final report was filed and thereafter the case was committed to the

Sessions Court for trial. Prosecution examined PW 1 to PW4 and

marked Exts.P1 to P8, apart from MO1-the can containing the

contraband article. After assessing the evidence adduced, the

learned Sessions Judge found the accused guilty of the offence and

convicted him and sentenced the accused, as mentioned earlier.

3. I have heard Adv.Rajasimhan A., the learned counsel for the

appellant as well as Adv.Dhanil M.R., the learned Public Prosecutor.

4. The learned counsel for the appellant invited my attention to

the evidence of PW2 and PW3 and argued that their evidence is

contradictory to the prosecution case. The learned counsel invited

my attention to the prosecution case that the can containing the

alleged contraband article was sealed at the time of seizure and

thereafter produced before the Excise Range Office and then before

the court. Thus, the can, according to the learned counsel, ought to

have been contained the same seal, which was affixed at the time of

seizure. He submitted that MO1 can, when marked in evidence, did

not contain the original seal. It was further pointed out that, as per

the evidence of PW1 and PW2, the sample was not taken at the time

of seizure, but was taken only subsequently, from the court. When

the original seal on MO1 is tampered with, according to the counsel,

the same certainly creates doubts on the prosecution story. Learned

counsel also points out that the lone independent witness adduced

by the prosecution was PW3, who turned hostile to the prosecution.

In the evidence given by him, he had stated that he had not seen the

seizure or the sampling of the contraband article.

5. Learned Public Prosecutor controverted the submissions

made by the learned counsel for the appellant and pointed out that it

had come out in evidence, as seen from the depositions of PW1 and

PW2, that the sample was taken from the court after removing the

initial seal and since the same was done in front of the court, the

sanctity of such sampling procedure cannot be doubted.

6. After having given my anxious consideration to the

contentions stated as above, I find that there are serious infirmities in

the prosecution case. The substantive evidence in criminal law is the

evidence adduced before the court. The substantive evidence

adduced must convincingly prove the guilt of the accused, failing

which the benefit of doubt must be given to the accused. The

sampling procedure must inspire confidence for a court of law to rely

upon it. With the aforesaid proposition in mind, when the evidence

adduced before the trial court is appreciated, it is seen that PW1 has

categorically stated that the original seal alleged to have been affixed

on MO1 can was removed to take the sample.

7. Purpose of affixing seal on a contraband article seized, is to

inspire confidence. When the original seal is disturbed or broken or

removed, prior to adducing substantive evidence before the court of

law, the same will affect the sanctity of the prosecution case. Affixing

the seal on MO1 and taking sample from MO1, ought to have been a

simultaneous process so that there could not have been any

tampering, difference or variation in the sample taken and the

contents of the alleged contraband. This Court has, time and again,

emphasized the importance of specimen seal on the forwarding note,

the sample and the contraband and the seal affixed in the material

object produced before court. Unless, these three specimen seals

tally with each other, the link connecting the material object produced

before court with the sample that was taken out of the said material

object and the sample that was forwarded for chemical analysis will

be snapped. Once the said link snaps, the prosecution story cannot

be said to have been completely proved beyond reasonable doubt.

8. The evidence of PW1, to which my attention was drawn by

the learned counsel for the appellant, is as follows;

"ത ണ ക ട യ ൽ ഹ ജര ക .
ക ട യ ൽ ന ന ണ Sample എട ക നത. ക രയ എന സല
സലത ന ന എത മ റ യ ണ എന റയ ൻ ഴ യ ല#.
സലത ന ന 5KM മ റ യ ണ ക രയ എന റയ ന
(Q). അറ യ ല# (A). കലബൽ യ റ ക യ അറസ(തമക)
യ റ ക യ ത ണ സ+ൽ ത,യ ഞ ൻ തനയ ണ.
അന യ റ ക യ കലബൽ ഇക0 ൾ MO1-ൽ ണ ന ല#.
ക ട യ ൽ ന ന ഒട ച കലബല ണ ഇക0 ൾ ഉളത. ഞങൾ
വച സ+ൽ ഇളക യ ക;ഷമ ണ ക ട യ ൽ ന ന Sample
എട ത സ+ൽ ത,യ ത.
ന ങൾ സലത ന ന ട തചട തതന റയ ന ന സ
ര ചറ യ ൻ എത>ങ ല അടയ ള റയ ൻ ഴ യ കമ (Q).
റത ന സ ണ. അടയ ള എന ക റയ ൻ ഴ യ ല#. Seal
ത,യ ക0 ഴ ള specimen impression ക ട യ ൽ ഹ ജര ക യ ട ല#."

9. The above extracted portion from the deposition of PW1

clearly shows that no sanctity can be attached to MO1 so as to

inspire the required confidence in the court to convict the accused.

10. It is also noteworthy at this juncture to refer to the evidence

of PW3, who turned hostile. As contended by the learned counsel for

the appellant, PW3 was the lone independent witness adduced by

the prosecution. He was examined to prove the seizure of the

contraband article from the accused. When the originally affixed

sample seems to be tampered with and the lone independent

witness, examined to prove the seizure of the contraband article,

turned hostile, and in spite of cross-examination nothing fruitful has

been elicited from the said independent witness, the prosecution