Kerala High Court

Thankamani vs State Of Kerala on 15 July, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
   THURSDAY, THE 15TH DAY OF JULY 2021 / 24TH ASHADHA, 1943
                       CRL.A NO. 1820 OF 2006
  AGAINST THE JUDGMENT DATED 25.08.2006 IN SC.NO.319/2004 OF
 ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III (ADHOC),
                        MANJERI, MALAPPURAM
APPELLANT/ACCUSED:

            THANKAMANI
            VINNAMCHATH VEETTIL, CHIRATTAKKUNNU, KUTTIPPURAM
            AMSOM, KUTTIPPURAM DESOM, TIRUR TALUK.

            BY ADV P.M.RAFIQ



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
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1820 of 2006

                                         2


                         K. BABU J.
            ------------------------------------
                    Crl.A.No.1820 of 2006
            ------------------------------------
               Dated this the 15th            day of July, 2021

                               J U D G M E N T

Aggrieved by the judgment dated 25.08.2006, passed by

the learned Additional Sessions Judge, Fast Track Court

No.III (Adhoc), Manjeri in SC.No.319/2004, the accused

has preferred this appeal.

2. The trial court convicted the accused for the

offence punishable under Section 55(g) of the Kerala

Abkari Act.

3. The prosecution case is that on 21.09.2002 at

about 06.00 a.m., the accused was found in possession of

10 liters of Wash in a plastic pot having a capacity of

18 liters at Chirattakkunnu, Kuttippuram, Malappuram

District.

4. The final report was submitted against the

accused for the offence punishable under Section 55(g) of

the Abkari Act before the Judicial First Class Magistrate Crl.A.No.1820 of 2006

Court, Tirur.

5. The case was committed to the Sessions Court,

Manjeri, from where it was made over to the Additional

Sessions Court, Fast Track Court No.III (Adhoc), Manjeri.

On appearance of the accused charge was framed against

her for the offence punishable under Section 55(g) of the

Abkari Act. The accused pleaded not guilty and therefore,

she 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 6 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. She 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 she was called upon to enter on her defence and to

adduce evidence, if any, she may have in support thereof.

The learned trial court, after hearing arguments Crl.A.No.1820 of 2006

addressed from both sides, found that the accused is

guilty of offence under Section 55(g) of the Abkari Act

and she was convicted thereunder. The accused was

sentenced to undergo rigorous imprisonment for a term of

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

55(g) of the Abkari Act.

8. Heard Sri. P.M.Rafiq, 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

raised the following grounds:

(a) The prosecution failed to establish the identity

of the person who was allegedly possessing the

contraband substance at the scene of occurrence.

(b) The prosecution failed to establish that the

articles said to have been seized from the place

of occurrence ultimately reached the Chemical

Examiner's laboratory.

delay caused in the analysis of the sample at

the Chemical Examiner's laboratory.

(d) The prosecution has not offered any satisfactory

explanation for the delay in completion of the

investigation.

10. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish the

charge against the accused.

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, an Excise Preventive Officer attached to

Excise Special Squad, Malappuram detected the offence. He

has given evidence that on 21.09.2002 at about 6 a.m.,

the accused was found carrying a plastic pot at

Chirattakkunnu, Kuttippuram, Malappuram District, near

the residence of Chenganayil Sarada. PW1 has further

given evidence that on inspection he found that the

plastic pot carried by the accused contained 10 liters of Crl.A.No.1820 of 2006

Wash. PW1 seized the Wash found in possession of the

accused, as per Ext.P1, seizure mahazar. PW1 has given

evidence that the accused being a lady could not be

arrested as no woman official was available with them.

According to PW1, he collected 500 ml each, from the Wash

seized, in 2 bottles as samples and sealed the same. PW1

entrusted the articles allegedly seized from the place of

occurrence to the Excise Guard on duty at Excise Range

Office, Tirur. PW2, an Excise Preventive Officer, who had

accompanied PW1, supported the version of PW1.

13. PW4, an independent witness, did not support the

prosecution case. PW3, Excise Inspector, Excise Range

Office, Tirur, produced the articles seized before the

court on 23.09.2002. PW5, an Excise Guard on duty on the

relevant day also supported the prosecution case. PW6,

the Excise Range Inspector, Tirur, conducted

investigation and submitted final report before the

Court.

14. Learned counsel for the appellant/accused

contended that the prosecution miserably failed to Crl.A.No.1820 of 2006

establish the identity of the person who was carrying the

contraband substance at the scene of occurrence.

Admittedly the accused was not arrested from the spot.

PW1 identified the accused in the court. PW1 has no case

that he had any previous acquaintance with the accused.

PW2, the Excise Preventive Officer, who had accompanied

PW1, has given evidence that he had previous acquaintance

with the accused as he had gone to her residence in

connection with some other cases. PW2 added that a case

had been earlier registered against the accused. PW2 has

failed to give the specific details of the case allegedly

registered against the accused earlier.

15. It is pertinent to note that Ext.P1 seizure

mahazar is silent regarding the previous acquaintance of

PW2 with the accused. Ext.P1 seizure mahazar, prepared by

PW1 at the scene of occurrence in the presence of PW2,

would state that the Excise party found "a lady" carrying

a plastic pot containing illicit arrack and on further

verification they ascertained her whereabouts. If PW2 had

any previous acquaintance with the accused as stated by Crl.A.No.1820 of 2006

him in court in his evidence, the same would have found a

place in Ext.P1 seizure mahazar. Hence the evidence of

PW2 that he had previous acquaintance with the accused

is not credible. This Court is unable to accept the

version so given by PW2.

16. Hence this Court comes to the conclusion that

PWs 1 and 2 had no previous acquaintance with the

accused. PWs1 and 2 identified the accused in the court

in July, 2006, approximately after a long lapse of 4

years. PWs 1 and 2 have not given any satisfactory

evidence as to any of the circumstances which would

enable them to identify the accused after such a long

lapse of time.

17. It is well settled that the substantive piece of

evidence of identification of an accused is the evidence

given by the witness during the trial. Where a witness

identifies an accused, who is not known to him in the

court, for the first time, his evidence is absolutely

valueless unless there has been a previous test

identification parade to test his power of observation Crl.A.No.1820 of 2006

(vide: Jameel v. State of Maharashtra [AIR (2007) SC

971], Raja v. State by Inspector of Police [AIR (2020) SC

254], Kannan and Others v. State of Kerala [AIR (1979) SC

1127], State (Delhi Administration) v. V.C.Shukla and

Another [AIR (1980) SC 1382], Mohanlal Gangaram Gehani v.

State of Maharashtra [AIR (1982) SC 839], Mohd. Abdul

Hafeez v. State of AP [AIR (1983) SC 367].

18. The resultant conclusion is that prosecution

failed to establish the identity of the person who was in

possession of the contraband substance at the place of

occurrence.

19. The learned counsel for the appellant/accused

further contended that the prosecution failed to

establish that the sample allegedly drawn at the place of

occurrence, eventually reached the Chemical Examiner's

laboratory.

20. The learned counsel relied on the following

circumstances to substantiate his contentions:

(a) The detecting officer has not produced the

specimen impression of the seal before the Crl.A.No.1820 of 2006

court.

(b) Ext.P5, copy of the forwarding note, is silent

regarding the specimen impression of the seal.

Examiner's laboratory was a bottle containing

500 ml of liquid stated to have been sent from

the Judicial First Class Magistrate Court on

21.09.2002, a date anterior to the date on which

the articles were produced before the court.

(d) The prosecution has not offered any satisfactory

explanation for the delay in the analysis of the

sample reached at the Chemical Examiner's

laboratory.

21. No convincing evidence has been produced before

the court to establish that the specimen impression of

the seal was produced before the court and forwarded to

the Chemical Examiner to verification. Ext.P5, copy of

the forwarding note, does not contain the specimen

impression of the seal stated to have been affixed on the

bottle containing the sample at the scene of occurrence Crl.A.No.1820 of 2006

by the detecting officer. What is affixed in Ext.P5 copy

of the forwarding note is the seal of the Magistrate's

court concerned.

22. 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".

23. 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.

24. Ext.P6, certificate of chemical analysis, would Crl.A.No.1820 of 2006

show that the laboratory received one sealed bottle

containing 500 ml of a dark brownish turbid liquid as per

letter dated 21.09.2002 of the Judicial First Class

Magistrate Court, Tirur. In Ext.P5, copy of the

forwarding note, the learned Magistrate has not written

the date on which he affixed his initial. The date of

despatch of the sample to the laboratory is not mentioned

in Ext.P5. The official witnesses have not given evidence

as to the date on which the sample bottle was despatched

to the Chemical Examiner's laboratory. Ext.P4 property

list shows that the properties were received at the

Judicial First Class Magistrate Court-I on 23.09.2002.

What was subjected to analysis in the laboratory is a

bottle forwarded as per letter dated 21.09.2002 by the

learned Judicial First Class Magistrate Court, Tirur.

This would lead to the conclusion that what was subjected

for examination at the Chemical Examiner's laboratory was

a sample containing the contraband substance collected

anterior to the date on which the articles were produced

by PW3 as per Ext.P4. This creates serious suspicion as Crl.A.No.1820 of 2006

to whether the contraband stated to have been drawn at

the place of occurrence eventually reached the Chemical

Examiner's laboratory.

25. In the given fact situation the prosecution

ought to have examined the Thondi Clerk of the court or

the Excise official, who received the sample bottle from

the court, and the official who delivered the same to the

Chemical Examiner's laboratory. This is more important

when Ext.P6 shows that the bottle containing the sample

reached the Chemical Examiner's laboratory only on

18.10.2002. Ext.P6 further shows that the sample received

at the laboratory was subjected to analysis only on

30.12.2003.

26. The learned counsel for the appellant contended

that the delay in analysis of the sample, which has not

been explained satisfactorily, is also fatal to the

prosecution. 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. Crl.A.No.1820 of 2006

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."

27. In the instant case, the delay of more than one

year in the analysis of the sample remains unexplained.

28. 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.

29. 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