Kerala High Court

Sundar Raj vs State Of Kerala on 1 July, 2021

             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. 2399 OF 2006
AGAINST THE JUDGMENT IN SC 467/2001 OF ADDITIONAL S.C.-TRIAL
   OF ABKARI ACT CASES,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:

             SUNDAR RAJ
             S/O.THANKARAJAN,
             PERIYAVILA PUTHEN VEEDU, THETTIYODU,
             AYINKAMOM, PARASSALA, THIRUVANANTHAPURAM.

             BY ADV SRI.G.SUDHEER



RESPONDENT/COMPLAINANT:

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

             BY ADV

             SRI.M.S.BREEZ, SR.PUBLIC PROSECUTOR



THIS   CRIMINAL       APPEAL    HAVING   COME   UP    FOR    ADMISSION   ON
01.07.2021,     THE     COURT    ON   THE   SAME     DAY    DELIVERED    THE
FOLLOWING:
 CRL.A NO. 2399 OF 2006

                                   2

                              JUDGMENT

Aggrieved by the judgment dated 05.08.2006, passed by the

Additional Sessions Judge for the trial of Abkari Act Cases,

Neyyattinkara in Sessions Case No.467 of 2001, the accused has

preferred this appeal.

2. The trial court convicted the accused for the offence

punishable under Section 58 of the Abkari Act.

3. The prosecution case is that on 01.05.1998 at about 4 p.m.

while the Sub Inspector of Police, Parassala Police Station was on

patrol duty, the accused was found in possession of 13 litres of illicit

arrack in a garden land near Thettyodu Channel in Parassala Village.

The Sub Inspector seized the contraband articles and arrested the

accused. After completion of investigation, final report was filed

against the accused before the Judicial Magistrate of First Class II,

Neyyattinkara. The case was committed to the Sessions Court,

Thiruvananthapuram from where it was made over to the Additional

Sessions Court, Neyyattinkara. On appearance of the accused, charge

was framed against the accused for the offence punishable under

Section 55(a) of the Abkari Act. The accused pleaded not guilty and

therefore, he came to be tried by the trial court for the aforesaid CRL.A NO. 2399 OF 2006

offence.

4. The prosecution examined PWs 1 to 7 and proved Exhibits

P1 to P7 and MOs 1 to 3.

5. After closure of evidence on behalf of the prosecution, the

statement of the accused under Section 313 Cr.P.C. was recorded. He

pleaded total innocence. The trial court heard the matter under

Section 232 of Cr.P.C. and found that there was evidence against the

accused. The accused was called upon to enter on his defence and to

adduce evidence, if any, he may have in support thereof. The trial

court after hearing the arguments addressed from both sides convicted

the accused and sentenced him to undergo rigorous imprisonment for

a term of 3 years and to pay a fine of Rs.1,00,000/-.

6. Heard Sri.G.Sudheer, learned counsel for the

appellant/accused and Sri.M.S.Breez, learned Senior Public

Prosecutor.

7. The learned counsel for the appellant/accused raised the

following grounds to challenge the judgment of conviction.

(a) The prosecution failed to establish that the

appellant/accused was in possession of the properties

produced before the court.

(b) The prosecution has not succeeded in establishing that CRL.A NO. 2399 OF 2006

the contraband allegedly seized from the place of

occurrence reached the court and the sample said to have

been drawn eventually reached the Chemical Examiner's

Laboratory.

8. The learned Public Prosecutor contended that the

Prosecution successfully established the charge against the accused.

9. The only point that arises for consideration is whether the

judgment of conviction and sentence passed against the accused is

sustainable or not.

10. The point.

PW3, the detecting officer, was the Sub Inspector of Police, Parassala.

PW3 has given evidence that on 01.05.1998 the accused was found in

possession of 10 litres of arrack in a 10 litre can and about 3 litres of

arrack in another can having a capacity of 5 litres at Thettiyodu in a

garden land. PW3 arrested the accused from the spot and seized the

contraband articles from his possession. He prepared Ext.P1 seizure

Mahazar. According to PW3 he sealed the cans containing illicit

arrack. PW3, on 02.05.1998, produced the properties marked as MOs

1 to 3, before the JFCM II, Neyyattinkara.

11. PW2, a Police Constable attached to Parassala Police

Station who had accompanied PW3 in the alleged search and seizure, CRL.A NO. 2399 OF 2006

supported the version given by PW3.

12. PW1, an independent witness, did not support the

Prosecution case. PW4 was the Thondi Clerk of the Judicial First

Class Magistrate Court II, Neyyattinkara. PW4 has given evidence that

on 02.05.1998 the properties mentioned in Ext.P5 property list were

produced before the court and that as per directions of the learned

Magistrate she received the same. PW4 further stated that she had

collected samples from the can containing illicit liquor. She has not

stated the date on which she collected the samples. Ext.P2 is the FIR

registered on the basis of the suo motu information brought in by PW3.

Ext.P3 and Ext.P4 are the Arrest Memo and Remand Report

respectively. The list of properties produced before the court is marked

as Ext.P5. Ext.P6 is the Chemical Analysis Report certifying that Ethyl

Alcohol was detected in the samples sent for examination. The

relevant page of the Thondi Register maintained at the JFCM II,

Neyyattinkara has been marked as Ext.P7 through PW4.

13. The learned counsel for the accused submitted that the

specimen of the seal used for sealing the contraband, recovered from

the place of occurrence, has not been produced before the Court. It is

also submitted that the nature and description of the seal used by PW3

has not been narrated in Ext.P1 seizure mahazar. PW3 has not given CRL.A NO. 2399 OF 2006

evidence as to the nature and description of the seal that he had used

for sealing the cans allegedly recovered from the spot. PW2 or the

other official witnesses have not given evidence as to the nature and

description of the seal used by PW3 at the spot. This Court is

completely in the dark as to the nature and description of the seal used

by PW3.

14. The copy of the forwarding note describing the samples

sent for chemical examination has not been placed before the court.

The specimen impression of the seal affixed on the bottles containing

the sample has also not been produced and marked. The specimen of

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 samples forwarded to the Chemical Examiner (vide: Achuthan

v. State of Kerala [ILR 2016 (2) KER 145], Bhaskaran v. State

of Kerala and another [2020 KHC 5296]).

15. Ext.P5, the property list, shows that the properties seized

from the spot were produced before the court on 02.05.1998 itself. It

is further seen from Ext.P5 that on 04.05.1998 the properties were

entrusted to the officials of Parassala Police Station as per the orders of

the learned Magistrate. There is nothing to show as to who received

those properties from the court and when those properties were again CRL.A NO. 2399 OF 2006

brought back to the court. PW4, the Thondi Clerk, only stated that she

received the properties on 02.05.1998. She added that she had

extracted the samples. It is pertinent to note that her evidence is silent

as to the date on which the sample was drawn. This Court is kept in

the dark as to who received the properties from the court on

04.05.1998 and who brought back the same to the court. This Court is

also in the dark as to the date on which the sample was drawn. No

contemporaneous record was prepared at the time of taking sample.

There is absolutely no evidence as to nature and description of the seal

affixed on the bottle containing the sample. Ext.P6, Chemical Analysis

Report, shows that as per a letter dated 29.05.1999 the bottles

containing the samples were received by the Chemical Examiner's

Laboratory. This Court is in the dark as to the officials who handled

the contraband articles during the period from 04.05.1998 to

29.05.1999. It is evident that the samples remained in the custody of

many officials. None of them were examined by the Prosecution to

prove that while in their custody the seals were not tampered with.

16. There is absolutely no evidence to convince the court that

specimen impression of the seal has been provided to the Chemical

Examiner. None of the prosecution witnesses have given evidence on CRL.A NO. 2399 OF 2006

those aspects. In Rajamma v. State of Kerala [(2014) 1 KLT

506)], while dealing with the question of lack of evidence regarding the

production of specimen seal before the court to be provided to the

Chemical Examiner, this Court held as follows:-

"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 PW.1 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."

17. There is also no evidence as to who received the sample

from the court and on which date. The prosecution failed to establish

these vital aspects, which are imperative to form a link evidence to

show that the very same sample which was drawn from the contraband

substance allegedly seized from the possession of the accused reached

the hands of the Analyst. In the absence of this link evidence no value

can be given to Ext.P6 certificate of chemical analysis.

18. 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 CRL.A NO. 2399 OF 2006

was drawn from the bulk quantity of alleged contraband substance said

to have been possessed by the accused. This is more so when the