Kerala High Court

Anil Kumar, S/O. Kesavan 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. 1461 OF 2006
AGAINST THE JUDGMENT IN SC 538/2004 OF ADDITIONAL SESSIONS
             JUDGE, FAST TRACK COURT -II, ALAPPUZHA
APPELLANT/ACCUSED:

         ANIL KUMAR, S/O. KESAVAN,
         PALATHARAPADEETTETHIL, VATHIKULAM MURI,
         THEKKEKARA VILLAGE, MAVELIKKARA.

         BY ADV GEORGE VARGHESE(PERUMPALLIKUTTIYIL)



RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REP. 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
07.07.2021,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A No.1461 of 2006                2




                                  K.BABU, J.
                        =========================
                             Crl.A No.1461 of 2006
                        ==========================
                          Dated this the 7th day of July, 2021



                                 JUDGMENT

Aggrieved by the judgment dated 4.7.2006, passed by the

Additional Sessions Judge, Fast Track Court II, Alappuzha, in

S.C.No.538/2004, the accused has preferred this appeal. The

trial court convicted the accused for the offences punishable

under Sections 55(a) and 8(2) of the Abkari Act.

2. The prosecution case is that on 22.10.2002 at 4.45

pm., the accused was found in possession of 3 litres of arrack in

a plastic can having a capacity of 5 litres for sale at Decent

mukku in Koippally Kanazhama Muri in Peringala Village.

3. After completion of investigation, final report was

submitted against the accused for the offences punishable under

Sections 8(2) and 55(a) of the Abkari Act before the Judicial First

Class Magistrate Court, Kayamkulam. The case was committed

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

to the Additional Sessions Court, Fast Track Court II, Alappuzha.

On appearance of the accused charges were framed against him

for the offences punishable under Sections 8 (2) and 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 offences.

4. The prosecution examined PWs 1 to 6 and proved

Exts.P1 to P7 and MO1. DWs 1 and 2 were examined on the side

of the accused. Defence proved Exts.D1 to D3.

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 offences under Sections 55(a) and 8(2) of the Abkari Act

and he was convicted thereunder. He was sentenced to undergo

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

Rs.1,00,000/- under Section 55(a) of the Abkari Act. No separate

sentence was awarded to the accused for the offence under

Section 8(2) of the Abkari Act.

6. Heard Sri.George Varghese Perumpallikutty, 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 contended that

the prosecution failed to establish that the contraband substance

said to have been seized from the possession of the accused

eventually reached the hands of Public Analyst at the Chemical

Examiner's laboratory.

8. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish the

charges against the accused.

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. PW5, the Preventive Officer, Excise Range,

Mavelikkara detected the offence on 22.10.2002. PW5 has given

evidence that on the date of occurrence the excise team lead by

him found the accused entering into Mavelikkara-Kuttitheruvu

road, from the lane on the northern side of Jaya Stores in

Peringala Village, carrying a white cannas. According to PW5,

on seeing the excise party, the accused attempted to escape.

But he was apprehended by the excise team. PW5 seized the

can, possessed by the accused, which contained 3 litres of illicit

arrack. PW5 collected 200 ml of arrack from the can in a bottle

having a capacity of 375 ml. and sealed the same. PW5

prepared Ext.P5 seizure mahazar and Ext.P2 arrest memo. The

accused was taken to the Excise Range Office along with the

articles seized.

11. PW1, another Preventive Officer, who had

accompanied PW5, has given evidence in support of the version

given by PW5. PWs 2 and 3, the independent witnesses, did not

support the prosecution case. PW4, the Excise Inspector,

Mavelikkara Range, conducted initial investigation in this case.

PW6 completed investigation and submitted final report before

the court on 2.4.2004.

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 Public Analyst for the

following reasons:

a) The detecting officer, (PW5) and the

other official witness who had accompanied him

(PW1) have not given evidence as to the nature and

description of the seal affixed on the bottle

containing 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) Ext.P6, the copy of the forwarding note,

is silent with regard to the person with whom the

sample was sent for analysis and the learned

Magistrate who counter signed the same did not

mention the date on which he affixed his signature.

13. I have gone through the depositions of witnesses and

Ext.P1 mahazar. PW5, the detecting officer and the other

witnesses 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 bottle, containing the sample.

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. This Court is in the dark as to the person with

whom the sample was sent to the laboratory. There is no

evidence to show the date on which the sample was handed

over to the official concerned for delivering the same to the

laboratory. The learned Magistrate omitted to mention the

date on which he affixed his signature in Ext.P6.

17. The learned counsel for the appellant relied on

Kumaran v. State of Kerala (2016(4) KLT 718) to contend

that this infirmity would lead to the conclusion that the

prosecution failed to establish that the sample was sent to the

laboratory in a tamper proof condition and the accused is

therefore entitled to benefit of doubt.

18. In Kumaran v. State of Kerala (supra) this Court

held thus:

"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 tamper proof 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." (Emphasis supplied)

19. The prosecution has not examined the Thondi

Cleark of the court or the Excise official concerned and

hence failed to establish the tamper proof despatch of the

sample to the laboratory.

20. 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.

21. It is settled that the prosecution in a case of this

nature can succeed only if it is proved that the sample which