Babu vs State Of Kerala
2021 Latest Caselaw 14821 Ker

              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. 2206 OF 2008
 AGAINST THE ORDER/JUDGMENT IN SC 57/2007 OF ADDITIONAL DISTRICT
                       COURT(ADHOC 2), THRISSUR
APPELLANT/ACCUSED:

            BABU
            S/O.SUKUMARAN, AINIPULLY HOUSE, CHAKKITHARA DESOM,
            ANJOOR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT.
            BY ADV SRI.K.A.SATHEESH BABU


RESPONDENT/COMPLAINANT:

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



            SRI. BREEZ M.S, PUBLIC PROSECUTOR


     THIS   CRIMINAL   APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A No.2206 of 2008
                                      2

                                K.BABU, J.
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                  Criminal Appeal No.2206 of 2008
                    ---------------------------------------
                   Dated this the 15th day of July, 2021
                               JUDGMENT

Aggrieved by the judgment dated 03-09-2008, passed by the

learned Additional Sessions Judge (Fast Track Court-II), Thrissur in

S.C No.57/2007, the accused has preferred this appeal.

2. The trial court convicted the accused for the offence

punishable under section 63 read with section 13 and section 55(i) of

the Abkari Act.

3. The prosecution case is that on 22-04-2005 the accused was

found in possession of 7.5 litres of Indian Made Foreign liquor in the

provision shop bearing door No.AP/VIII/155 run by him at

Chakkithara. According to the prosecution the accused had stored

the contraband articles in his shop for the purpose of sale.

4. After completion of investigation, final report was

submitted against the accused for the offences punishable under

sections 55(a) and 55(i) of the Abkari Act before the Judicial First

Class Magistrate Court, Kunnamkulam. The case was committed to Crl.A No.2206 of 2008

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

Additional Sessions Court (Fast Track Court-II), Thrissur. On

appearance of the accused charges were framed against him for the

offences punishable under sections 55(a) and 55(i) of the Abkari Act.

The accused pleaded not guilty to the charges levelled against him

and therefore, he came to be tried by the trail court for the aforesaid

offences.

5. The prosecution examined PWs 1 to 9 and proved Exts.P1 to

P16 and MOs 1 to 4.

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 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 trial

court, after hearing the arguments addressed from both sides, found

that the accused is guilty of offences under section 63 read with

section 13 and section 55(i) of the Abkari Act and he was convicted Crl.A No.2206 of 2008

thereunder. The accused was sentenced to undergo simple

imprisonment for a term of 3 years and to pay a fine of Rs.1 Lakh

under section 55(i) of the Abkari Act and for a period of six months

under section 63 read with section 13 of the Abkari Act.

7. Heard Sri.K.A.Satheesh Babu, 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/accused contended

that the prosecution failed to establish that the contraband

substance allegedly seized from the place of occurrence eventually

reached the Chemical Examiner's laboratory.

9. The learned Public Prosecutor submitted that the

prosecution could well establish the charges 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.

The Point

11. PW1, the Excise Preventive Officer, Kunnamkulam Excise Crl.A No.2206 of 2008

Range, detected the offence. He has given evidence that on 22-04-

2005 while the Excise team led by him was on patrol duty, around 6

p.m, he got reliable information that the accused had stored liquor in

his provision store for the purpose of sale. PW1 has given further

evidence that he proceeded to the shop run by the accused and

conducted search therein, and found 7.5 litres of Indian Made

Foreign Liquor in 5 bottles. PW1 effected seizure of the contraband

substance as per Ext.P6 seizure mahazar. He collected 200 ml of

liquor from one of the bottles as sample and sealed the same.

12. PW2, the Excise guard who had accompanied PW1, has

given evidence in support of the prosecution..

13. PWs 3 and 4, the independent witnesses examined to prove

the search and seizure, did not support the prosecution case. PW5,

the Excise Range Inspector, Kunnamkulam received the articles

seized and the contemporaneous documents prepared at the scene of

occurrence. The accused was also produced before PW5. PW5 has

given evidence that he prepared Ext.P9 Crime and Occurrence report

on the basis of the documents produced by PW1 and produced the Crl.A No.2206 of 2008

articles seized from the possession of the accused before the court as

per Ext.P10 property list.

14. PW6, the local Village Officer who had prepared Ext.P3

sketch, was examined to prove the place of occurrence. PW7, the

Secretary of the Kunnamkulam Municipality, was examined to

establish the trade licence issued in respect of the shop from which

the contraband substance was recovered. The ownership in respect

of the building was proved through PW8, the Revenue Officer

concerned. PW9 conducted investigation and submitted final

report.

15. The learned counsel for the appellant/accused submitted

that the prosecution failed to prove that the contraband substance

allegedly drawn from the bulk quantity of the liquor seized from the

place of occurrence eventually reached the Chemical Examiner's

laboratory. The learned counsel for the appellant submitted that the

prosecution failed to establish the link evidence to connect the

accused with the contraband substance.

16. PW1, the detecting officer and PW2, the preventive officer Crl.A No.2206 of 2008

who had accompanied PW1 in the search and seizure, have not given

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

bottle containing the sample.

17. The specimen impression of the seal affixed on the bottle

containing the sample had not been produced before the court.

Exhibit P12, the copy of the forwarding note, is silent regarding the

specimen of the seal used by the detecting officer.

18. When the specimen of the seal affixed on the bottle

containing the sample is not produced before the court and

forwarded to the Chemical Examiner for verification and to ensure

that the sample seal, so provided, was tallying with the seal affixed

on the sample bottle no evidentiary value can be given to the

chemical analysis report (Vide: Rajamma v. State of Kerala [(2014)

1 KLT 506)].

19. In the instant case, since no evidence has been placed

before the court to convince that the specimen seal or specimen

impression of the seal had been provided to the Chemical Examiner,

no evidentiary value can be attached to Ext.P16 chemical analysis Crl.A No.2206 of 2008

report.

20. As mentioned afore, Ext.P12, the copy of the forwarding

note, does not contain the specimen impression of the seal. The

copy of the forwarding note is also silent with regard to the name of

the person with whom the sample was sent for analysis. Exhibit P16

certificate of chemical analysis shows that the sample was received in

the laboratory through Excise guard Sri.K.J.Lonappan on 21-05-2005.

The space meant for writing the name of the Excise guard with

whom the sample was sent remained vacant in Ext.P12, the copy of

the forwarding note. The learned Magistrate has not even initialled

in Ext.P12. There is no evidence to show the date on which the

sample was forwarded to the Chemical Examiner' laboratory. Exhibit

P16 certificate of chemical analysis refers to a letter dated 19-05-2005

of the Judicial First Class Magistrate, Kunnamkulam by which the

sample bottle was forwarded to the laboratory. This Court is in the

dark as to who received the bottle containing the sample from the

court concerned and on which date. Exhibit P6 would show that the

sample bottle, forwarded on 19-05-2005, reached the laboratory only Crl.A No.2206 of 2008

on 21-05-2005. 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."

21. In the instant case the prosecution ought to have examined

the thondi clerk of the court or the Excise official who received the Crl.A No.2206 of 2008

bottle from the court to prove the tamper proof despatch of the

sample to the laboratory.

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

several hands like, the thondi clerk of the court, the Excise official

who received the sample from the court and the Excise guard who

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

of these witnesses were examined to establish the tamper proof

despatch of the sample from the court concerned to the laboratory.

Resultantly, this Court comes to the conclusion that the prosecution

failed to establish the link evidence to prove the tamper proof

handling of the sample.

23. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex

Court held that mere production of a laboratory report that the sample

tested was the contraband substance cannot be conclusive proof by

itself and that the sample seized and that tested have to be co-related.

24. 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 Crl.A No.2206 of 2008

drawn from the bulk quantity of the alleged contraband substance said

to have been seized from the possession of the accused. {Vide : State

of Rajasthan v. Daulat Ram [AIR (1980) SC 1314], Sasidharan v.

State of Kerala [2007 (1) KHC 275]}.

25. 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.

26. The upshot of the above discussion is that 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 offences punishable under section 63 read with section 13 and

section 55(i) of the Abkari Act. He is acquitted of the charges. He is set

at liberty.

The appeal is allowed as above.

Sd/-

K.BABU, JUDGE KAS