Manoj vs State Of Kerala
2021 Latest Caselaw 14227 Ker

             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. 1169 OF 2008
 AGAINST THE JUDGMENT DATED 14.5.2008 IN S.C.NO.185/2007 OF IVTH
        ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA
APPELLANT/ACCUSED:

          MANOJ
          S/O.NARAYANAN, PUNNAMMOOTTIL,
          PEPPARA KARA, IDUKKI VILLAGE.

          BY ADVS.
          SRI.RENJITH B.MARAR
          SRI.L.RAJESH NARAYAN


RESPONDENT/COMPLAINANT:

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



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


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION           ON
08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1169/2008                             2



                              JUDGMENT

Dated this the 8th day of July, 2021

Aggrieved by the judgment dated 14.5.2008, passed by the

learned Additional Sessions Judge (Adhoc-II), Thodupuzha, in

Sessions Case No.185 of 2007, the accused has preferred this

appeal. The trial court convicted the accused for the offence

punishable under Section 8(2) of the Abkari Act.

2. The prosecution case is that on 1.6.2006, at 4.30 P.M.

in the landed property owned by one Alexander at Peppara Kara

in Idukki Village, the accused was found possessing two litres of

arrack in a can having a capacity of ten litres. The Sub Inspector

of Police, Idukki Police Station, detected the offence and

registered Crime No.147 of 2006 alleging offence punishable

under Section 8(2) of the Abkari Act.

3. 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, Idukki. The case was committed to the

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

Additional Sessions Court (Adhoc) II, Thodupuzha.

4. 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 7 and proved

Exhibits P1 to P10 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 is evidence against the

accused and hence he was called upon to enter on his evidence

and to adduce evidence, if any, he may have in support thereof.

The trial court, after hearing the arguments addressed from both

sides, found that the accused is guilty of the offence punishable

under Section 8(2) of the Abkari Act and he was convicted

thereunder. The accused was sentenced to undergo rigorous

imprisonment for one year and to pay a fine of Rs.1,00,000/-.

7. I have heard Sri.B.Renjith Marar, the learned counsel

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

learned Senior Public Prosecutor appearing for the respondent/

State.

8. The learned counsel for the appellant submitted that

the prosecution failed to establish that the contraband substance

said to have been seized from the place of occurrence ultimately

reached the hands of the 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.

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. PW3, the Sub Inspector of Police, Idukki Police

Station, has given evidence that on 1.6.2006, on getting reliable

information that one Punnamoottil Manoj (accused) was engaged

in the sale of illicit arrack in the uninhabited property of one

Alexander at Peppara, he proceeded to the spot and found the

accused carrying a can having a capacity of ten litres. PW3

deposed that on seeing the police party, the accused jumped to

Peppara - 56 Colony Road, from the place of occurrence after

abandoning the can. In the incident, the accused sustained

injuries and he was sent to the District Hospital, Idukki. PW3 has

stated that the can possessed by the accused had contained two

litres of illicit arrack. He collected sample in two bottles, each

containing 180 ml. of arrack, and sealed the same. PW3 prepared

Exhibit P1 seizure mahazar and registered Exhibit P3 FIR on the

basis of it. PW4, the Assistant Sub Inspector, Idukki Police

Station, who had accompanied PW3, supported the prosecution

case. PWs 1 and 2, the independent witnesses examined to prove

the incident proper, did not support the prosecution case. PW5,

the S.I. of Police, Idukki, conducted investigation and submitted

final report.

12. The learned counsel for the appellant contended that

the prosecution failed to establish that the contraband substance

allegedly recovered from the place of occurrence ultimately

reached the Chemical Examiner's laboratory.

13. The learned counsel for the appellant relied on the

following circumstances to substantiate his contention.

(a) The detecting officer (PW3) and the other official

witness (PW4), who had accompanied PW3, had not given

evidence as to the nature and description of the seal affixed on the

bottles containing the sample.

(b) There is no convincing evidence as to the date on

which the contraband articles, including the sample, were

forwarded to the court. PW3, the detecting officer, was unaware

of the police official who brought the articles to the court.

(c) Copy of the forwarding note (Exhibit P5) is silent

regarding the name of the official with whom the sample was sent

to the Chemical Examiner's laboratory and the date on which the

same was forwarded.

14. The specimen impression of the seal stated to have

been affixed on Exhibit P1 mahazar is not legible. PW3 and PW4

have not given evidence as to the nature and description of the

seal affixed on the bottles containing the sample.

15. The detecting officer, who had drawn the sample, has

to give evidence as to the nature of the seal affixed on the bottle

containing the sample [Vide : Bhaskaran v. State of Kerala

and another (2020 KHC 5296) and Krishnadas v. State of

Kerala (2019 KHC 191)]. In the instant case, the detecting

officer, has not given evidence as to the nature of the seal affixed

on the bottle containing the sample. This is an infirmity affecting

the prosecution case.

16. PW3 gave evidence that the articles seized, including

the sample, were forwarded to the court through a police

constable. He was unaware of the name of the police official with

whom the articles, including the sample, were forwarded to the

court and the date on which the articles were forwarded. He has

also not given evidence that the thondi articles, including the

sample, were in his safe custody. There is no convincing evidence

regarding the date on which the properties, including the sample,

reached the court.

17. Exhibit P5, copy of the forwarding note, whereby the

sample was forwarded to the Chemical Examiner is silent with

regard to the name of the person with whom the sample was sent

for analysis. Exhibit P6, certificate of chemical analysis, would

show that the sample was received in the laboratory through a

police constable No.2257. The name and details of the police

official, who delivered the sample in the laboratory, have not been

mentioned in the copy of the forwarding note. The learned

Magistrate has not written the date on which he affixed his initials

in the forwarding note. While dealing with a similar fact situation,

this Court in Kumaran v. State of Kerala [2016 (4) KLT 718]

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."

18. In the instant case, it was imperative for the

prosecution to examine the thondi clerk of the court or the police

official who produced the bottles containing the sample before

the court and also the police official who received the sample from

the court to be delivered to the laboratory to establish tamper

proof despatch of the sample.

19. It has come out in evidence that the sample changed

several hands before reaching the Chemical Examiner's

laboratory. The sample remained in the custody of the police

official who brought the same from the police station to the court,

the thondi clerk of the court, the police official who received the

sample from the court and the police constable No.2257 who

delivered the same to the Chemical Examiner's laboratory. None

of these witnesses were examined by the prosecution to prove that

while in their custody the seals were not tampered with.

20. In State of Rajasthan v. Daulat Ram [AIR 1980

Supreme Court 1314], the Apex Court, while considering a case in

which the samples changed several hands before reaching the

public analyst and yet none of those witnesses were examined by

the prosecution to prove that while in their custody the seals were

not tampered with, held that the inevitable effect of this omission

is that the prosecution failed to rule out the possibility of samples

being changed or tampered with during the relevant period - a fact

which had to be proved affirmatively by the prosecution. In

Vijay Pandey v. State of Uttar Pradesh [AIR 2019 SC

3569], the Apex Court held that mere production of a laboratory

report that the sample tested was contraband substance cannot be

conclusive proof by itself. The Apex Court held that the sample

seized and that tested have to be co-related.

21. In the instant case, the prosecution failed to establish

the tamper proof despatch of the samples to the Chemical

Examiner's laboratory. In such a situation, no evidentiary value

can be given to Exhibit P6 certificate of chemical analysis.

22. 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 drawn from the contraband substance allegedly seized

from the possession of the accused.

23. In the instant case, the prosecution was unable to

establish the link connecting the accused with the contraband

substance seized and the sample analysed in the laboratory. The

accused is entitled to benefit of doubt arising from the absence of

the link evidence as discussed.

24. 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 8(2) of the Abkari Act. He is acquitted

of the charge levelled against him. He is set at liberty.

The Criminal Appeal is allowed as above.

Sd/-

K.BABU, JUDGE csl