Kerala High Court

Madhu vs State Of Kerala,Represented By on 16 July, 2021

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                   THE HONOURABLE MR.JUSTICE K. BABU
       FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
                        CRL.A NO. 1765 OF 2006
AGAINST THE    JUDGMENT IN SC.NO.292/2005 OF ADDITIONAL DISTRICT
          AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT-I,
                             PATHANAMTHITTA,
APPELLANT/ACCUSED:

            MADHU, AGED 35 YEARS,
            S/O. RAMACHANDRAN, THULASI BHAVANAM, VALUPARA,
            KUMARAMPEROOR, VADAKKEKKARA,, CHITTAR SEETHATHODU.

            BY ADV SHRI.M.V.S.NAMPOOTHIRY



RESPONDENT/COMPLAINANT:

            STATE OF KERALA, REPRESENTED 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
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1765 of 2006

                                   2


                         K. BABU J.
            ------------------------------------
                    Crl.A.No.1765 of 2006
            ------------------------------------
                 Dated this the 16th     day of July, 2021

                           J U D G M E N T

Aggrieved by the judgment dated 22.08.2006, passed by

the learned Additional Sessions Judge, Fast Track Court

No.I (Adhoc), Pathanamthitta in SC.No.292/2005, the

accused No.1 has preferred this appeal.

2. The trial court convicted the accused/appellant

for the offence punishable under Section 8(2) of the

Kerala Abkari Act.

3. The prosecution case is that on 29.04.2003 at

16.30 hours, the present accused and accused No.2 were

found in possession of 3,250 liters of Wash in 130 tin

barrels in the forest land at Valupara Junction,

Kumaramperror, Vadakkekara Muri, Seethathodu Village by

the Sub Inspector of Police, Moozhiyar Police Station.

4. After completion of investigation, final report

was submitted against the appellant and the other accused Crl.A.No.1765 of 2006

(accused No.2), who is the father of the accused No.1,

for the offence punishable under Section 8(2) of the

Abkari Act before the Judicial First Class Magistrate

Court, Ranni.

5. The case was committed to the Sessions Court,

Pathanamthitta, from where it was made over to the

Additional Sessions Court, Fast Track Court No.I (Adhoc),

Pathanamthitta. On appearance of the accused charge was

framed against them for the offence punishable under

Section 8(2) of the Abkari Act. Both the accused pleaded

not guilty and therefore, they 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 P6 and MO. 1.

7. After closure of the evidence on behalf of the

prosecution, the statement of the accused under Section

313 Cr.P.C was recorded. They 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 they were called upon to enter on their defence and Crl.A.No.1765 of 2006

to adduce evidence, if any, they may have in support

thereof.

8. The learned trial court, after hearing arguments

addressed from both sides, found that the appellant/

accused No.1 was guilty of offence under Section 8(2) of

the Abkari Act and he was convicted thereunder. The

accused No.2 was acquitted. The appellant/accused No.1

was sentenced to undergo rigorous imprisonment for a term

of two years and to pay a fine of Rs.2,00,000/- under

Section 8(2) of the Abkari Act.

9. Heard Sri. M.V.S.Nampoothiry, the learned

counsel appearing for the appellant/accused and Sri. M.S.

Breez, the learned Senior Public Prosecutor appearing for

the respondent.

10. The learned counsel for the appellant/accused

canvassed the following grounds to challenge the

judgment of conviction:

(a) The prosecution failed to establish the

identity of the persons, who were allegedly

possessing the contraband substance at the Crl.A.No.1765 of 2006

scene of occurrence.

(b) The inordinate delay in the production of

properties before the court has not been

satisfactorily explained.

(c) 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.

(d) There is no satisfactory explanation for the

delay in the analysis of the sample at the

Chemical Examiner's laboratory.

11. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish the

charge against the accused.

12. The only point that arises for consideration is

whether the conviction entered and the sentence passed

against the appellant/accused are sustainable or not.

THE POINT

13. PW4, the Sub Inspector of Police, Moozhiyar,

detected the offence. He has given evidence that on Crl.A.No.1765 of 2006

29.04.2003 at about 16.30 hours, on getting reliable

information that the appellant and other accused were

engaged in manufacturing illicit arrack, the Police team

led by him proceeded to the place of occurrence at

Valupara.

14. PW4 has given evidence that on seeing the Police

party the appellant and other accused ran away from the

scene of occurrence, leaving the contraband articles. PW4

collected 900 ml of Wash in 3 bottles (300 ml each) as

sample and sealed the same. PW1, the Police Official who

had accompanied PW4 supported the prosecution case.

15. PW2, an independent witness, who was examined to

prove the incident proper, did not support the

prosecution case. PW3, the Deputy Ranger, Forest Range

Office, Kozhikkal has given evidence that the place of

occurrence is forest land. PW5 conducted investigation

and submitted final report before the Court.

16. Learned counsel for the appellant further

submitted that prosecution failed to establish the

identity of the persons who were in possession of the Crl.A.No.1765 of 2006

contraband substance at the place of occurrence. The case

of the prosecution is that on seeing the Police team the

appellant and the other accused ran away from the scene

of occurrence. PW4 and other official witnesses have

claimed that they had seen the appellant and the other

accused from a distance of 50 meters. The official

witnesses have no case that they had any previous

acquaintance with the appellant and the other accused.

The detecting officer and the other official witness, who

had accompanied him identified the appellant/accused in

the court in July 2006 after a lapse of three years. The

independent witness who was examined to prove the seizure

and identity of the accused did not support the

prosecution case.

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 Crl.A.No.1765 of 2006

identification parade to test his power of observation

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

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

254], Kanan 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. In the instant case, the prosecution has no case

that the witnesses who identified the appellant had any

opportunity to see him after the incident and they

identified him in the court after a long lapse of three

years. This Court, hence, comes to the conclusion that

prosecution failed to establish the identity of the

persons who were allegedly possessing the contraband

substance at the place of occurrence.

19. The learned counsel for the appellant/accused

further contended that the inordinate delay in the

production of the properties before the court has not

been explained by the prosecution. PW4, the detecting Crl.A.No.1765 of 2006

Officer, admitted that properties allegedly seized from

the place of occurrence were produced before the Court

only on 27.10.2003. Ext.P4, list of properties, sent to

the Magistrate also shows that the properties reached the

court only on 27.10.2003. No satisfactory explanation has

been placed before the court for the delay in the

production of the properties.

20. On the question of delay in production of the

properties, the Division Bench of this Court in Ravi v.

State of Kerala & another [2011 (3) KHC 121] held thus:

"1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate "forthwith" either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property." (Emphasis supplied)

21. The Division Bench held that production of the

property before the court should take place without

unnecessary delay and there should be explanation for the

delay when there is delayed production of the property.

Crl.A.No.1765 of 2006

In the instant case there is no satisfactory explanation

for the delay in the production of the property. The

unexplained delay in the production of properties would

lead to the conclusion that tampering with the samples

could not be ruled out.

22. 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.

23. The learned counsel for the appellant/accused

relied on the following circumstances to substantiate his

contentions:

(a) The detecting officer and the official witness,

who had accompanied him, have not given evidence

as to the nature and description of the seal

affixed on the bottles containing the sample.

(b) Ext.P1, seizure mahazar, the contemporaneous

document evidencing seizure, is silent regarding

the nature and description of the seal used by Crl.A.No.1765 of 2006

the detecting officer.

specimen impression of the seal was provided to

the Chemical Examiner to ensure that the seal

affixed on the bottles containing the sample was

tallying with the specimen provided.

24. PW4, the detecting officer and PW1, the Police

official, who had accompanied him in the search and

seizure, have not given evidence as to the nature and

description of the seal affixed on the bottles containing

the sample. Ext.P1, seizure mahazar, is also silent

regarding the specimen of the seal stated to have been

affixed on the bottles containing the sample.

25. 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 Crl.A.No.1765 of 2006

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)].

26. There is absolutely no evidence as to the nature

and description of the seal stated to have been affixed

on the bottles containing the sample. Ext.P5, copy of the

forwarding note, is also silent regarding the the

specimen impression of the seal stated to have been used

by the detecting officer.

27. While considering a fact situation in which the

prosecution failed to establish that the specimen

impression of the seal was not produced before the court

and forwarded to the Chemical Examiner, this Court in

Rajamma v. State of Kerala [2014 (1) KLT 506], 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 Crl.A.No.1765 of 2006

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".

28. 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 had been provided to the Chemical

Examiner, no evidentiary value can be given to Ext.P6

certificate of chemical analysis.

29. Ext.P6, certificate of chemical analysis, would

show that the sample reached the laboratory on

10.11.2003. But the sample was analysised only on

26.11.2004. The prosecution has not offered any

explanation for the delay in the analysis of the sample

at the Chemical Examiner's laboratory. 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 Crl.A.No.1765 of 2006

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."

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

year in the analysis of the sample remains unexplained.

31. 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.

32. 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 contraband substance said to