Anil Kumar vs State Of Kerala
2021 Latest Caselaw 13697 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                            PRESENT
              THE HONOURABLE MR.JUSTICE K. BABU
    FRIDAY, THE 2ND DAY OF JULY 2021 / 11TH ASHADHA, 1943
                     CRL.A NO.1808 OF 2006
  AGAINST THE JUDGMENT IN S.C.NO.333/2004 DATED 11.7.2006 OF
       II ADDITIONAL ASSISTANT SESSIONS COURT,KOZHIKODE

APPELLANT/ACCUSED:

          ANIL KUMAR
          AGED 42 YEARS
          S/O.SREEDHARAN,
          MALAYIL HOUSE, KAKKODI P.O.,
          KOZHIKODE, PIN - 673 611.
          BY ADV SRI.SUNNY MATHEW


RESPONDENT/COMPLAINANT:

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


          SRI.M.S. BREEZ (SR.PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1808/2006                              2



                                   JUDGMENT

Dated this the 2nd day of July, 2021

Aggrieved by the judgment dated 11.7.2006, passed by the

II Additional Assistant Sessions Judge, Kozhikode in Sessions

Case No.333 of 2004, 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 5.5.2000, the accused

was found in possession of 2½ litres of illicit arrack on the

Moottoli-Payimbra road. He was arrested by the Excise Inspector,

Chelannur who seized the contraband article from his possession.

4. After completion of investigation, final report was

submitted against the accused by PW4, Excise Inspector, before

the Judicial First Class Magistrate Court-I, Kozhikode. The case

was committed to the Sessions Court, Kozhikode, from where it

was made over to the IInd Additional Assistant Sessions Court,

Kozhikode. On appearance of the accused, charge was framed

against the accused 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.

5. The prosecution examined PW1 to PW4 and proved

Exhibits P1 to P7 and MO1.

6. After closure of the evidence on behalf of the

prosecution, the statement of the accused under Section 313

Cr.P.C. was recorded. 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 trial court, after hearing the arguments addressed from both

sides, convicted the accused and sentenced him to undergo

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

Rupees One Lakh.

7. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

8. It has been brought to the notice of this Court that

since the impugned judgment, by which a sentence of

imprisonment for one year and a fine of Rupees One lakh was

imposed, was passed by an Assistant Sessions Judge this appeal

ought to have been filed before the Sessions Court concerned

under Section 374(3)(a) of the Cr.P.C. The appeal has been

pending on the files of this Court for the last more than 14 years.

If the appellant is relegated to the Sessions Court by returning the

appeal on technical ground such a course will be a travesty of

justice as this Court committed an error by admitting and keeping

the appeal for such a long time without realising the defect

regarding the forum of appeal. The appellant is entitled to the

constitutional protection enshrined in Article 21 of the Constitution

for speedy trial. The consequence of returning the appeal will be

in effect denial of the right guaranteed by the Constitution under

Article 21. Hence this Court decides to proceed with the appeal

and to dispose of it on merits.

9. On the merit of the appeal, the learned counsel for the

appellant contended that the prosecution failed to establish that

the sample stated to have been drawn from the scene of

occurrence ultimately reached the hands of the Analyst.

10. The learned Public Prosecutor, per contra, submitted

that the prosecution could well establish the charge against the

accused.

11. PW1, the Excise Range Inspector, Chelannur,

detected the offence. PW1 gave evidence that on 5.5.2000, the

accused was found in possession of 2½ litres of illicit arrack in a

plastic can on the Moottoli - Payimbra road. PW1 arrested the

accused from the place of occurrence, seized the contraband

substance and prepared Exhibit P2 seizure mahazar. He collected

180 ml. of illicit arrack in a bottle as sample and sealed the same.

PW1 prepared Exhibit P5 requisition for chemical analysis. He

produced the accused before the learned Magistrate on 6.5.2000.

He also produced the properties seized from the possession of

the accused before the court on 6.5.2000 itself. PW2, the

Preventive Officer, who had accompanied PW1 in the search and

seizure, supported the version of PW1. No independent witnesses

were examined. PW3, the then Village Officer, Kakkodi, prepared

Exhibit P6 sketch of the scene. PW4, the Excise Inspector,

Chelannur conducted investigation and submitted final report.

12. The learned counsel for the appellant submitted that

the prosecution failed to establish the date on which the sample

was sent to the Chemical Examiner's laboratory. He also

submitted that Exhibit P5, the copy of the forwarding note, is silent

as to the person who received the sample from the court for

delivering the same to the laboratory.

13. The learned counsel for the appellant brought to my

notice that Exhibit P7, certificate of chemical analysis, refers to

letter No.PR 91/2000 dated 6.5.2000 of the Judicial First Class

Magistrate Court-I, Kozhikode whereby the sample was forwarded

to the laboratory. But, the sample reached the laboratory only on

9.6.2000. The learned counsel for the appellant submitted that

there is nothing to show as to who was in possession of the

sample from 6.5.2000 to 9.6.2000. Relying on the above referred

infirmity, the learned counsel for the appellant submitted that the

prosecution failed to establish that the sample stated to have been

drawn at the scene of occurrence ultimately reached the hands of

the chemical analyst.

14. The learned Magistrate has not written the date on

which he affixed his signature in Exhibit P5. The space meant for

writing the name of the Excise Official with whom the sample was

sent remained unfilled in Exhibit P5. Exhibit P7 would show that

the learned Magistrate has forwarded the sample as per letter

No.PR 91/2000 dated 6.5.2000. Exhibit P5 is silent as to who

received the sample from the court. Exhibit P7 would show that

the sample was delivered at the Chemical Examiner's laboratory

on 9.6.2000 through Excise Guard by name Padmanand. A

question arises as to who was in custody of the sample during the

period from 6.5.2000 to 9.6.2000. Exhibit P5 only says that the

sample was sent by a special messenger. This Court is in the

dark as to who received the sample from the Magistrate's Court

concerned as well as the date on which it was received by the

person concerned. If the learned Magistrate had indicated the

date on which the sample was sent to the laboratory in Exhibit P5,

this doubt would not have arisen. It is the duty of the prosecution

to establish the date on which the sample bottle was handed over

to the special messenger for delivering the same to the Chemical

Examiner's laboratory and also the person with whom it was sent.

What is available in evidence is that the learned Magistrate by

letter dated 6.5.2000 forwarded the sample to the laboratory and

the same reached the laboratory on 9.6.2000 through Excise

Guard by name Padmanand. The prosecution failed to establish

that the sample was actually received by Sri.Padmanand from the

court. There is no evidence to show the date on which the official

concerned received the sample from the court.

15. While dealing with a similar fact situation, this Court in

Kumaran v. State of Kerala [2016 (4) KLT 718] held as follows :

"7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding

note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

Kumaran v. State of Kerala (supra) was followed by this Court in

Jayakumar v. State of Kerala (2018 KHC 3165). In the above

cases, this Court has held that in cases where the copy of the

forwarding note is silent with regard to the name of the person

with whom the sample was sent for analysis and the learned

Magistrate failed to write the date on which he affixed the

signature or initial, it was imperative for the prosecution to

examine the thondi clerk of the court or the Excise Guard

concerned to prove the tamper proof despatch of the sample to

the laboratory.

16. In the instant case, neither the thondi clerk nor the

Excise Guard through whom the sample was sent to the

laboratory was examined.

17. This Court is kept in the dark as to who received the

bottle containing the sample from the court. The date on which the

official concerned received the bottle containing the sample to

deliver the same to the Chemical Examiner's laboratory, is also

not evident from the oral evidence of the witnesses and the

documents marked in evidence. In such a situation, the

prosecution ought to have examined the Thondi Clerk or the

Excise Official concerned to establish the tamper-proof despatch

of the sample to the laboratory.

18. Admittedly, the sample changed several hands before

the same reached the Analyst. None of the officials who handled

the sample have been examined. Non-examination of those

witnesses would lead to the conclusion that the prosecution failed

to establish the tamper-proof despatch of the sample to the

Chemical Examiner's laboratory. [Vide: State of Rajasthan v.

Daulat Ram [(1980) 3 SCC 303], Ravi v. State of Kerala & another

(2011(3) KHC 121) and Valsala v. State of Kerala (1993 KHC

798)].

19. It is settled law that the prosecution can succeed only

if it is established that the sample which was drawn from the

contraband liquor allegedly seized from the accused ultimately

reached the hands of the analyst. [vide : State of Rajasthan v.

Daulat Ram (AIR 1980 SC 1314)]. In view of the above referred

infirmity, this Court comes to the conclusion that the prosecution

failed to establish the link evidence to connect the accused with

the contraband substance.

In the result, the appeal is allowed. The accused is

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

set at liberty.

SD/-

K.BABU, JUDGE csl