Kerala High Court

Ganesh, S/O Vellan vs State Of Kerala on 13 July, 2021

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                    THE HONOURABLE MR.JUSTICE K. BABU
       TUESDAY, THE 13TH DAY OF JULY 2021 / 22ND ASHADHA, 1943
                         CRL.A NO. 2361 OF 2006
  AGAINST THE       JUDGMENT DATED 09.10.2006 IN SC.NO.68/2004 OF
       ADDITIONAL SESSIONS COURT (ADHOC-), KALPETTA, WAYANAD
APPELLANT/ACCUSED:

             GANESH, S/O VELLAN
             AGED 35, KOOTARA HOUSE, AMBALAVAYAL,, NELLARACHAL
             P.O., S. BATHERY TALUK,, WAYANAD DISTRICT.

             BY ADV M.P.ASHOK KUMAR



RESPONDENT/COMPLAINANT:

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

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


THIS     CRIMINAL    APPEAL   HAVING   COME   UP   FOR   ADMISSION   ON
13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2361 of 2006

                                  2




                         K. BABU J.
            ------------------------------------
                    Crl.A.No.2361 of 2006
            ------------------------------------
                Dated this the 13th   day of July, 2021

                        J U D G M E N T

Aggrieved by the judgment dated 09.10.2006, passed by

the learned Additional Sessions Judge (Adhoc-I), Kalpetta

in S.C.No.68/2004, 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 17.12.2002 at

about 05.00 p.m., the accused was found in possession of

2 liters of illicit arrack in a can having a capacity of

5 liters and a glass in front of the Pump House at

Vattachola in Mupainadu Village.

4. Final report was submitted against the accused

for the offence punishable under Section 55(a) of the

Abkari Act before the Chief Judicial Magistrate, Crl.A.No.2361 of 2006

Kalpetta.

5. The case was committed to the Sessions Court,

Kalpetta, from where it was made over to the Additional

Sessions Court (Adhoc-I), Kalpetta. On appearance of the

accused charge was framed against him for the offence

punishable under Section 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 offence.

6. The evidence for the prosecution consists of the

oral evidence of PWs 1 to 5 and Exts.P1 to P7 and MOs.1

to 2.

7. 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 Crl.A.No.2361 of 2006

addressed from both sides, found that the accused is

guilty of offence under Sections 55(a) of the Abkari Act

and he was convicted thereunder. The accused was

sentenced to undergo rigorous 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.

8. Heard Sri.M.P.Ashok Kumar, the learned counsel

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

the learned Senior Public Prosecutor appearing for the

respondent.

9. The learned counsel for the appellant/accused

submitted that the prosecution failed to satisfactorily

establish that the articles said to have been seized from

the place of occurrence ultimately reached the Chemical

Examiner's laboratory. The learned counsel for the

appellant further submitted that prosecution has not

offered any satisfactory explanation for the inordinate

delay in conducting investigation.

10. The learned Public Prosecutor, per contra, Crl.A.No.2361 of 2006

submitted that the prosecution could well establish the

charge against the accused. He contended that sufficient

materials are there to establish the prosecution case.

11. 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

12. PW1, the Preventive Officer of Excise

Enforcement Anti-Narcotic Special Squad, detected the

offence. PW1 has given evidence that on 17.12.2002

while he was on patrol duty, the accused was found in

possession of a Plastic can having a capacity of 5 liters

at Vattachola. According to PW1, on further verification

he found that the can in the possession of the accused

contained 2 liters of illicit arrack. PW1 seized the

contraband substance in the possession of the accused as

per Ext.P2 seizure mahazar. The accused was arrested from

the spot. PW1 had collected 200 ml of arrack as sample in

a bottle having a capacity of 375 ml from the contraband Crl.A.No.2361 of 2006

substance possessed by the accused. PW1 has given

evidence that he had sealed the sample bottle as well as

the can containing the remaining arrack.

13. PW2, the Excise Guard, who had accompanied PW1

in the patrol duty, supported the prosecution case. PW3,

an independent witness, examined to prove the arrest and

seizure, did not support the prosecution case. PW4, the

Excise Inspector, Excise Range Office, Kalpetta produced

the articles allegedly seized from the place of

occurrence before the Court on 18.12.2002. PW5, the

Excise Inspector, Excise Range Office, Kalpetta took up

the investigation on 05.08.2003 and submitted the final

report on 20.08.2003.

14. The learned counsel for the appellant/accused

contented that the prosecution failed to establish that

the very same sample allegedly drawn from the can

recovered at the place of occurrence eventually reached

the Chemical Examiner's laboratory. The learned counsel

for the appellant relied on the following circumstances Crl.A.No.2361 of 2006

to substantiate his contentions:

a) PW1, the detecting officer and the other official

witnesses have not given evidence as to the nature

and description of the seal affixed on the bottle

containing the sample.

b) Ext.P2, seizure mahazar, the contemporaneous

document evidencing seizure, does not contain any

narration as to the nature and description of the

seal affixed on the sample bottle.

c) The prosecution failed to establish the safe

custody of the bottle containing the sample during

the period from 18.12.2002 to 16.01.2003.

15. PW1, the detecting officer and the other official

witnesses have not given evidence as to the nature and

description of the seal affixed on the bottle containing

the sample. Ext.P2, seizure mahazar, is silent regarding

the specimen of the seal stated to have been affixed on

the bottle containing the sample.

16. The detecting officer, who has drawn the sample, Crl.A.No.2361 of 2006

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. [vide: Bhaskaran v. State of

Kerala and another (2020 KHC 5296), Krishnadas v. State

of Kerala (2019 KHC 191), Achuthan v. State of Kerala

[ILR 2016 (2) Ker. 145]]

17. Ext.P7, certificate of chemical analysis, would

show that one sealed packet having a sealed 375 ml bottle

containing 200 ml of a clear and colourelss liquid

alleged to be arrack involved in CR.No.23/2002 of the

Kalpetta Excise Range, was forwarded to the Chemical

Examiner's laboratory as per letter No.TR 279/2002 dated

18.12.2002. Ext.P7 would further show that the above

referred sample bottle reached the Chemical Examiner's Crl.A.No.2361 of 2006

laboratory only on 16.01.2003. The sample bottle was

delivered at the laboratory by Shri P.T.Kannan, an Excise

Guard. The prosecution has not given any explanation as

to the custody of the bottle containing the sample during

the period from 18.12.2002 to 16.01.2003. In such a

situation it was imperative for the prosecution to

examine the Thondi Clerk of the court or the Excise

Guard, who received the sample bottle from the court to

prove the tamper proof despatch of the sample to the

laboratory. In the instance case, neither the Thondi

Clerk nor the Excise Guard through whom the sample was

sent to the laboratory was examined. Non examination of

the Thondi Clerk or the Excise Guard concerned would lead

to the conclusion that prosecution failed to establish

the tamper proof despatch of the sample to the

laboratory. In the absence of satisfactory evidence to

convince the court that the sample reached the laboratory

in a tamper-proof condition no evidentiary value can be

given to Ext.P7 certificate of chemical analysis. Crl.A.No.2361 of 2006

Ext.P7, certificate of chemical analysis, would further

show that the sample reached the laboratory on

16.01.2003. But the same was analysised only on

09.07.2003.

18. While dealing with the question of delay in

analysis of the sample this Court in Krishnadas v. State

of Kerala (2019 KHC 191) held as follows:

"6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused."

19. In the instant case, the long delay in the

analysis of the sample remains unexplained.

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 Crl.A.No.2361 of 2006

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 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