Kerala High Court
Rajan @ Swaminathan vs State Of Kerala on 8 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 8TH DAY OF JULY 2021 / 17TH ASHADHA, 1943
CRL.A NO. 1170 OF 2008
AGAINST THE ORDER/JUDGMENT IN SC 1073/2006 OF ADDITIONAL DISTRICT
& SESSIONS COURT, VADAKARA, KOZHIKODE
APPELLANT/ACCUSED:
RAJAN @ SWAMINATHAN
POST ORKATTIRI,VIA.VADAKARA,
KOZHIKODE DISTRICT.
BY ADV SRI.C.VALSALAN
SRI.RAKESH ROSHAN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY (SHO EDACHERY POLICE STATION IN CRIME
NO.42/2006), BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,, ERNAKULAM.
BY ADV PUBLIC PROSECUTOR
SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.1170 of 2008
2
K.BABU, J.
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Criminal Appeal No.1170 of 2008
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Dated this the 8th day of July, 2021
JUDGMENT
Aggrieved by the judgment dated 17-05-2008, passed by the
learned Additional Sessions Judge, Vadakara in S.C No.1073/2006,
the accused has preferred this appeal.
2. The trial court convicted the accused for the offence
punishable under Section 55(a) of the Abkari Act.
3. The prosecution case is that on 04-02-2006 at 12.30 hrs., the
accused was found in possession of 4 bottles of White Mischief
Classic brandy each containing 375 ml, 8 bottles of Green Magic
brandy each containing 375 ml, 8 bottles of Green Magic brandy
each containing 180 ml and 50 ml of Green Magic brandy contained
in a 180 ml bottle at a public lane near Orkateri L.P School at
Eramel.
4. After completion of investigation, final report was
submitted against the accused for the offence punishable under
Crl.A No.1170 of 2008
Sec.55(a) of Abkari Act before the JFCM Court, Vadakara. The case
was committed to the Sessions Court, Kozhikode from where it was
made over to the Additional Sessions Court, Vadakara. On
appearance of the accused charge was framed against him for the
offence punishable under 55(a) of Abkari Act. The accused pleaded
not guilty to the charge levelled against him and therefore, he came
to be tried by the trial court for the aforesaid offence.
5. The prosecution examined PW1 to PW7 and marked Exts.P1
to P8 to prove the case against the accused.
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 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 arguments addressed from both sides found
that the accused is guilty of offence under Section 55(a) of the
Abkari Act and he was convicted thereunder. The accused was
Crl.A No.1170 of 2008
sentenced to undergo rigorous imprisonment for a period of one
year and to pay fine of Rs.1 Lakh.
7. Heard Sri.Rakesh Roshan, learned counsel appearing for
the appellant/accused and Sri.M.S.Breez, learned Senior Public
Prosecutor appearing for the respondent.
8. The learned counsel for the appellant contended as follows:
(i) The prosecution failed to establish the identity of
the person who was allegedly in possession of the
contraband substance at the place of occurrence.
(ii) The prosecution failed to prove that the articles
said to have been seized from the place of
occurrence eventually reached the Chemical
Examiner's laboratory.
9. The learned Public Prosecutor, per contra, submitted that
the prosecution could well establish the charge against the accused.
10. The only point that arises for consideration is whether the
conviction entered and the sentence passed against the
accused/appellant are sustainable or not.
Crl.A No.1170 of 2008
The Point
11. PW3, the Sub Inspector Police, Edacheri Police station on
04-02-2006 detected the offence. He gave evidence that on 04-02-
2006 on getting reliable information that the accused was engaged
in the sale of foreign liquor at the place of occurrence, the police
party led by him reached there and found the accused in possession
of contraband articles. According to PW3, on seeing the police
party, the accused ran away from the scene of occurrence
abandoning the contraband articles. The police team could not
apprehend the accused, PW3 added. PW3 has given evidence that
the contraband articles were seized by him from the place of
occurrence by way of Ext.P2 seizure mahazar. PW1, the police
constable who had accompanied PW3, supported the prosecution
case.
12. PW4 and PW6, the independent witnesses examined to
prove the incident proper, did not support the prosecution case.
PW5, the S.I of Police, Edacheri Police Station conducted
investigation. PW7, the thondi clerk of JFCM Court, Vadakara gave
Crl.A No.1170 of 2008
evidence that on 06-02-2006 he received the articles produced
before the court and that the samples were forwarded to the
Chemical Examiner's laboratory on 09-03-2006.
13. The learned counsel for the appellant/accused submitted
that the prosecution failed to establish the identity of the person
who was allegedly possessing the contraband articles at the scene of
occurrence. PW3, the detecting officer and PW1, the police
constable who had accompanied him, are the witnesses who
identified the accused in the court. Both, PW3 and PW1, claimed to
have seen the person in possession of the contraband articles from a
distance of about 50 metres. Going by their evidence they had only
a fleeting glimpse of the person who ran away from the scene after
abandoning the contraband articles. PW1 stated that he had no
previous acquaintance with the accused. But the version of PW3 is
that he had previous acquaintance with the accused. Ext.P2 seizure
mahazar does not contain the narration of any of the features of the
man who was carrying the contraband substance at the place of
occurrence. In Ext.P2 seizure mahazar PW3 did not mention that
Crl.A No.1170 of 2008
he had previous acquaintance with the accused. PW3 also failed to
give evidence as to how he had got acquaintance with the accused
prior to the incident. If the official witnesses had any previous
acquaintance with the accused it would have been mentioned in
Ext.P2 seizure mahazar. No materials have been placed by the
prosecution to establish that the accused was involved in any other
crimes prior to this incident. PW1 and PW3 identified the accused
in the court on 19-04-2008 approximately after two years. No test
identification parade was conducted to test the powers of
observation of the official witnesses who identified the accused in
court. The possibility that PW1 and PW3 committed a mistake in
identifying the accused as the person who had carried the
contraband substances at scene of occurrence cannot be ruled out.
Resultantly, the identification of the accused by these witnesses
cannot be accepted.
14. The learned counsel for the appellant/accused further
submitted that the prosecution failed to establish that the sample
bottles eventually reached the Chemical Examiner's laboratory in a
Crl.A No.1170 of 2008
tamper proof condition. Ext.P2 seizure mahazar does not contain
the nature and description of the seal affixed on the sample bottles.
The nature of the seal used is not mentioned in the seizure mahazar.
The nature of the specimen seal provided in Ext.P5, copy of the
forwarding note, is not legible. The specimen of the seal has also
not been affixed in the seizure mahazar, which was the
contemporaneous document prepared at the scene of occurrence
evidencing seizure. PW1 and PW3 have not given evidence as to the
nature of the seal affixed on the sample bottle. While considering a
similar fact situation this Court in Bhaskaran K. v. State of Kerala
and another (2020 KHC 5296) held thus:
"20. PW5 has not given evidence as to the nature or
description of the seal which he had affixed on the bottle containing the
sample. Ext.P3 seizure mahazar is also silent on this aspect. There is
no evidence to show that PW5 had produced the specimen of the seal in
the court or that he had provided the same in the forwarding note
prepared by him for sending the sample for analysis. The nature of the
specimen seal provided in Ext.P6 copy of the forwarding note is not
legible. In these circumstances, there is no assurance that the very
same sample allegedly drawn by PW5 at the spot of the occurrence
from the liquid in the can was produced in the court and the very same
sample was forwarded for analysis and that Ext.P7 chemical analysis
report relates to the very same sample.
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
Crl.A No.1170 of 2008
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)."
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. In these circumstances there is no assurance that the very
same samples allegedly drawn by PW3 at the scene of occurrence
were produced in the court and forwarded to the Chemical
Crl.A No.1170 of 2008
Examiner's laboratory for analysis.
17. I have mentioned above that the specimen seal affixed in
Ext.P5 copy of the forwarding note is not legible. Exhibit P5 is silent
with regard to the name of the person with whom the bottles
containing the sample were sent for analysis. Exhibit P6 certificate
of chemical analysis would show that the samples were received in
the Chemical Examiner's laboratory through a police constable
No.6602. The thondi clerk of the court who gave evidence as PW7
has not given any evidence as to the person with whom the samples
were forwarded to the Chemical Examiner's laboratory. The police
constable with whom the samples were entrusted for delivering the
same to the laboratory was not examined as a witness. It was
imperative for the prosecution to examine the police constable who
received the samples from the court to establish tamper-proof
despatch of the sample to the laboratory {Vide: Kumaran v. State
of Kerala [2016 (4) KLT 718], Jayakumar v. State of Kerala (2018
KHC 3165)}. There is no evidence to convince the court that the
specimen seal or specimen impression of the seal has been provided to
Crl.A No.1170 of 2008
the Chemical Examiner. In the above circumstances, no evidentiary
value can be given to Ext.P6 chemical analysis report.
18. 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.
19. 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 place of occurrence
(Vide: State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314],
Sasidharan v. State of Kerala [2007 (1) KHC 275]. In the instant
case, the prosecution was unable to establish the link connecting
the accused with the contraband seized and the sample analysed in
the laboratory. The accused is entitled to benefit of doubt arising
from the absence of link evidence as discussed above.
Crl.A No.1170 of 2008
20. The conviction entered by the court below overlooking
these vital aspects of the matter cannot therefore be sustained. The
appellant/accused is therefore not guilty of the offence punishable
under Section 55(a) of the Abkari Act. He is acquitted of the charge
levelled against him. He is set at liberty.
The appeal is allowed as above.
Sd/-
K.BABU,
JUDGE
KAS
