Kerala High Court

[email protected] Podiyan vs State Of Kerala on 7 July, 2021

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
             THE HONOURABLE MR.JUSTICE K. BABU
 WEDNESDAY, THE 7TH DAY OF JULY 2021 / 16TH ASHADHA, 1943
                     CRL.A NO. 1528 OF 2006
   AGAINST THE JUDGMENT IN SC 398/2001 OF THE ADDITIONAL
       SESSIONS JUDGE (ABKARI), KOTTARAKKARA, KOLLAM
APPELLANT/ACCUSED:

         [email protected] PODIYAN
         S/O. SANKARAN, MUKALUVIILA VEEDU,
         MYLODU, KULANJIYIL, ELAMADU MURI,
         ELAMADU VILLAGE, KOTTARAKKARA TALUK.

         BY ADV SRI.D.JAYACHANDRAN



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REP.BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.




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




     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
07.07.2021,   THE    COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A.No.1528 of 2006               2




                                 K.BABU, J.
                    =====================
                        Crl.A.No.1528 of 2006
                    =====================
                     Dated this the 7th of July, 2021

                            JUDGMENT

Aggrieved by the judgment dated 20.7.2006, passed by the

Additional Sessions Judge (Abkari), Kottarakkara, in

S.C.No.398/2001, 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 26.11.1999 at 5 pm.,

the accused was found in possession of 2 litres of illicit arrack in a

jerry can having a capacity of 2½ litre at Ayoor in Kollam district.

4. 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 I, Punalur. The case was committed to the

Sessions Court, Kollam from where it was made over to the

Additional Sessions Court (Abkari), Kottarakkara. 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.

5. The prosecution examined PWs 1 to 5 and proved

Exts.P1 to P6 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. 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 Section 8(2) of the Abkari Act and he was

convicted thereunder. He was sentenced to undergo simple

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

Rs.1,00,000/-.

7. Heard Sri.D.Jayachandran, the learned counsel

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

learned Senior Public Prosecutor appearing for the respondent.

8. The learned counsel for the appellant contended that

the prosecution failed to establish that the articles said to have

been seized from the possession of the accused eventually

reached the hands of Public Analyst at the Chemical Examiner's

laboratory.

9. 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.

10. 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

11. PW4, The Preventive Officer, Excise Range Office,

Anchal detected the offence. He gave evidence that on

26.11.1999 at 5 pm while he was on patrol duty along with other

excise officials they found the accused carrying MO1 jerry can at

Ayoor. PW4 deposed that on seeing the excise party, the accused

attempted to turn back. But he was intercepted and questioned.

PW4 further deposed that he ascertained that the jerry can

possessed by the accused contained illicit arrack. PW4 arrested

the accused from the place of occurrence and seized the

contraband substance from his possession by way of Ext.P1

seizure mahazar. PW4 collected 300 ml of illicit arrack from the

jerry can in a bottle having the capacity of 375 ml and sealed the

same. PW4 entrusted the accused and the properties to PW3.

PW3, the Excise Guard attached to the Excise Range Office,

Anchal, gave evidence that he had produced the accused and the

contraband articles before the court. PW2, the independent

witness, did not support the prosecution. PW5, the Excise

Inspector, Anchal, conducted investigation.

12. The learned counsel for the appellant contended that

the prosecution failed to establish that the contraband substance

allegedly recovered from the possession of the accused ultimately

reached the hands of the Analyst for the following reasons:

                 a)      The detecting officer (PW4) and the

           Excise       Preventive   Officer   (PW1)    who   had

accompanied PW4, have not given evidence as to

the nature and description of the seal affixed on

the sample.

b) Ext.P1 seizure mahazar, the

contemporaneous document evidencing seizure,

does not contain any narration as to the nature

and description of the seal used.

c) The copy of the forwarding note, which

contains the specimen impression of the seal used,

has not been produced before the court.

13. I have gone through the depositions of the witnesses

and Ext.P1 mahazar. PW4, the detecting officer, and the other

witness who had accompanied him, have not given evidence as to

the nature and description of the seal affixed on the bottle

containing the sample. Ext.P1, seizure mahazar, does not contain

the specimen of the seal stated to have been affixed on the

sample. The learned Sessions Judge in para 8 of the judgment

stated that PW4 had given evidence to the effect that he had

affixed the seal containing the impression 'KE' on the MOs. On a

careful examination of the deposition of PW4, I find that PW4 has

not given such a statement before the Court. He only stated in the

cross examination that he had an office seal with the impression

'KE' and he specifically stated that he had not stated anything

regarding the nature of the seal in Ext.P1 seizure mahazar.

14. In Bhaskaran v. State of Kerala and another

(2020 KHC 5296), while considering a case in which the

nature of the seal used was not mentioned in the seizure

mahazar and the detecting officer failed to give evidence as

to the nature of the seal, this Court held thus:

"21. 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. The specimen of the seal shall be produced in the court. The specimen of the 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 sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424).

When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT

506)" (Emphasis supplied)

15. In Krishnadas v. State of Kerala (2019 KHC

191) this Court held thus:

"7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty." (Emphasis supplied)

16. The learned counsel further contended that there is

nothing to show that the specimen impression of the seal was

provided to the chemical examiner for verification and to ensure

that the sample seal so provided was tallied with the seal affixed

on the sample. There is absolutely no evidence as to the nature

and description of the seal stated to have been used by the

detecting officer and that the same has been provided to the

Chemical Examiner. The copy of the forwarding note, which

contains the specimen of the seal used and the name of the

official with whom the sample bottle was entrusted for delivering

the same to the Chemical Examiner's laboratory, has not been

produced and marked in this case. 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:

"9. 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."

17. 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 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".

18. In view of the fact that there is no evidence to convince

the court that the specimen seal or the specimen impression of

the seal has been provided to the Chemical Examiner, no

evidentiary value can be given to Ext.P6 chemical analysis report.

19. 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.

20. 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 accused. (vide: State of Rajasthan v. Daulat

Ram [AIR(1980)SC 1314]. In the instant case, the prosecution