Thankachan vs State Of Kerala
2021 Latest Caselaw 13497 Ker

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
            THE HONOURABLE MR.JUSTICE K. BABU
 THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
                 CRL.A NO. 2220 OF 2006
AGAINST THE JUDGMENT IN SC 7/2004 OF ADDITIONAL SESSIONS
   COURT (ADHOC), FAST TRACK COURT I, PATHANAMTHITTA,
                     PATHANAMTHITTA
APPELLANT/ACCUSED:

         THANKACHAN
         S/O GEORGE, KARUKKALUDEMELETHIL VEEDU,
         PANDALAM VILLAGE,, ADOOR TALUK,
         PATHANAMTHITTA DISTRICT.

         BY ADV SRI.C.B.SREEKUMAR



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REP.BY EXCISE INSPECTOR,
         ADOOR EXCISE RANGE, REPRESENTED BY THE PUBLIC
         PROSECUTOR, HIGH COURT OF KERALA,
         ERNAKULAM.




         BY SRI. M.S. BREEZ (SR.P.P)




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.A No.2220 of 2006           2



                              K.BABU, J.
                   =========================
                       Crl.A No.2220 of 2006
                   ==========================
                     Dated this the 1st day of July, 2021



                              JUDGMENT

Aggrieved by the judgment dated 19.9.2006, passed by the

learned Additional Sessions Judge (Adhoc), Fast Track Court I,

Pathanamthitta, in S.C.No.7/2004, the accused has preferred this

appeal.

2. The prosecution case is that on 20.12.1999, at 11 am,

the accused was found in possession of about 2 litres of arrack in

a white can having a capacity of 2½ litres on the public road at

Koorampala south in Koorampala Village.

3. After completion of 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, Adoor. The case was committed to the

Sessions Court, Pathanamthitta from where it was made over to

the Additional District and Sessions Judge (Adhoc), Fast Track

Court I, Pathanamthitta. 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.

4. The prosecution examined PWs 1 to 6 and proved

Exts.P1 to P6 and MOs 1 and 2.

5. 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

is 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

arguments addressed from both sides, found that the accused is

guilty of offence under Sections 8(2) of the Abkari Act and he

was convicted thereunder. He was sentenced to undergo

rigorous imprisonment for a term of one year and to pay a fine of

Rs1,00,000/- under Section 8(2) of the Abkari Act.

6. Heard Sri.C.B.Sree Kumar, the learned counsel

appearing for the appellant/accused and Sri.M.S.Breez, the

learned Senior Public Prosecutor appearing for the respondent.

7. The learned counsel for the appellant canvassed the

following grounds to challenge the impugned judgment:

a) The prosecution failed to establish the

possession of the contraband by the accused at the

scene of occurrence as alleged.

b) The prosecution miserably failed to

establish that the contraband article allegedly seized

from the place of occurrence ultimately reached the

Chemical Examiner's Laboratory.

8. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish the

charge against the accused. He contended that sufficient

materials are there to establish the prosecution case.

9. 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

10. PW1, the Preventive Officer attached to the Excise

Range Office, Adoor on 20.12.1999 at 11 am detected the

offence. He has given evidence that the accused was found in

possession of a plastic can containing 2 litres of arrack at

Koorampala south on the side of Kayamkulam-Pandalam road.

The accused was arrested from the spot and the contraband was

seized for which Ext.P2 seizure mahazar was prepared, PW1

added.

11. PW2, the Excise Guard who had accompanied the

detecting officer supported the version given by him. PW3 and

PW4, the independent witnesses, did not support the prosecution

case. PW5 conducted the initial investigation. PW6 completed

investigation and submitted final report. From the side of the

accused DWs 1 and 2 were examined.

12. The learned counsel for the appellant submitted

that the prosecution failed to establish that the very same

sample allegedly drawn at the scene ultimately reached the

hands of public analyst. He relied on the following

circumstances to substantiate his contentions:

a) The specimen seal has not been produced before the court. The copy of the forwarding note, which contains the specimen impression of the seal affixed on the bottle containing the sample sent to the Chemical Examiner's laboratory, has also not been produced and marked.

               b)     PW1, the detecting officer and the

       other        official   witnesses   have   not   given

evidence as to the nature and description of

the seal affixed on the sample.

c) Ext.P2, the seizure mahazar, is silent

regarding the nature and description of the

seal.

13. PW1 has not given evidence as to the nature and

description of the seal that he had affixed on the bottles

containing the sample. There is no evidence to show that

PW1 had produced the specimen of the seal in the court.

The copy of the forwarding note has not been placed before

the court, so as to ascertain whether the specimen of the

seal had been forwarded to the Chemical Examiner.

14. 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 (vide:

Bhaskaran v. State of Kerala and another (2020 KHC 5296),

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

15. In Rajamma v. State of Kerala (2014(1) KLT

506) : (2016(3) KHC 789) while dealing with the question

of non production of the specimen seal before the court,

this Court held thus:

"8. 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". (Emphasis supplied).

16. In Gopalan v. State of Kerala (2016 KHC 541)

on the failure of the prosecution to make available the copy

of the forwarding note, this Court held as follows:

"6. In this case, no forwarding note was marked before the Court. No forwarding note is also available before the Court. There is also no evidence before the Court that any forwarding note was prepared and produced before the Court by the Excise Officials. Since no forwarding note is available before the Court, the prosecution could not establish the link evidence connecting the revision petitioner with the contraband

seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to benefit of doubt." (Emphasis supplied)

17. In the instant case there is nothing to show that

the specimen seal was provided to the Chemical Examiner

for comparison. Ext.P6 certificate of chemical analysis says

that the seal on the bottle was intact and found tallied with

the sample seal provided. In the absence of any evidence to

show that the specimen seal had been provided to the

Chemical Examiner's lab, no evidentiary value can be given

to Ext.P6, certificate of Chemical analysis.

18. The prosecution failed to give evidence as to the

excise official who had received the sample bottle from the

court and the official who handed over the sample at the

Chemical Examiner's laboratory. There is no evidence to

show the date on which the sample was despatched to the

laboratory. In such circumstances, it was imperative for the

prosecution to examine the Thondi Section Clerk of the

court or the Excise official concerned, who handled the

sample. None of these witnesses have been examined by

the prosecution.

19. Absence of evidence regarding the nature and

description of the seal used by PW1 at the scene of

occurrence, non production of the specimen impression of

the seal before the court, lack of evidence regarding

forwarding of specimen seal to the Chemical Examiner for

comparison and non-examination of the officials who

handled the sample lead this Court to conclude that the

prosecution failed to establish the link evidence connecting

the appellant and the contraband allegedly seized and the

sample analysed in the laboratory.

20. It is well 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

contraband substance said to have been possessed by the

accused (vide: Valsala v. State of Kerala (1993 KHC 798), State

of Rajasthan v. Daulat Ram [AIR(1980)SC 1314].

21. 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.

22. In the absence of the link evidence discussed

above, the accused is entitled to benefit of doubt. The

conviction entered by the court below overlooking these

aspects, cannot therefore be sustained.

In the result, the appellant/accused is found not guilty

of the offence punishable under Section 8(2) of the Abkari

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

Abkari Act. The appellant/accused is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

                                           K. BABU
ab                                          JUDGE