Kuttappan vs State Of Kerala
2021 Latest Caselaw 15442 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
                 THE HONOURABLE MR.JUSTICE K. BABU
     FRIDAY, THE 23RD DAY OF JULY 2021 / 1ST SRAVANA, 1943
                       CRL.A NO. 2366 OF 2008
AGAINST THE JUDGMENT IN SC.NO.689/2007 OF ADDITIONAL SESSIONS
        JUDGE (ADHOC), FAST TRACK COURT NO.1, THRISSUR
APPELLANTS/ACCUSED:

           KUTTAPPAN
           S/O.THANKAPPAN, POZHANKANDATH HOUSE,
           TALAPPILLY TALUK, THRISSUR,

           BY ADV SRI.M.B.PRAJITH



RESPONDENT:

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

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


    THIS   CRIMINAL    APPEAL   HAVING    COME   UP   FOR   ADMISSION   ON
23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.2366 of 2008

                                     2




                            K. BABU J.
               ------------------------------------
                       Crl.A.No.2366 of 2008
               ------------------------------------
                  Dated this the 23rd day of July, 2021

                           J U D G M E N T

Aggrieved by the judgment dated 24.09.2008, passed by

the learned Additional Sessions Judge (Adhoc), Fast Track

Court No.I, Thrissur in SC.No.689/2007, the accused has

preferred this appeal.

2. The trial court convicted the accused for the

offence punishable under Section 58 of the Kerala Abkari

Act.

3. The prosecution case is that on 20.02.2006 at

about 05.30 p.m., the accused was found in possession of

1.250 liters of illicit arrack in front of the gate of

Mali Goat Farm, Chittanda Village, Talappilly Taluk,

Thrissur District.

4. The final report was submitted against the

accused for the offence punishable under Section 58 of Crl.A.No.2366 of 2008

the Abkari Act before the Judicial First Class Magistrate

Court, Wadakkanchery.

5. The case was committed to the Sessions Court,

Thrissur, from where it was made over to the Trial Court.

On appearance of the accused charge was framed against

him for the offence punishable under Section 58 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 P8 and Mos. 1

and 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 was 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. Crl.A.No.2366 of 2008

The learned trial court, after hearing arguments

addressed from both sides, found that the accused is

guilty of offence under Section 58 of the Abkari Act and

he 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 58 of the

Abkari Act.

8. Heard the learned counsel appearing for the

appellant/accused and Sri. M.S. Breez, the learned Senior

Public Prosecutor appearing for the respondent.

9. The counsel for the appellant/accused contended

that the prosecution failed to establish that the

contraband substance said to have been seized from the

place of occurrence ultimately reached the Chemical

Examiner's laboratory.

10. The learned Senior 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 Crl.A.No.2366 of 2008

whether the conviction entered and the sentence passed

against the accused are sustainable or not.

THE POINT

12. PW4, the Excise Inspector, Wadakkanchery Range,

detected the offence. He has given evidence that on

20.02.2006 at about 05.30 p.m., the accused was found in

possession of 1.250 liters of illicit arrack in a

Jerrycan in front of the gate of Mali Goat Farm,

Chittanda Village, Talappilly Taluk, Thrissur District.

PW4 seized the contraband substance found in the

possession of the accused. He had collected 375 ml of

arrack from the contraband substance as sample in a

bottle and sealed the same. The accused was arrested from

the spot by PW4. PW4 prepared Ext.P1 seizure mahazar.

PW5, an Assistant Excise Inspector, who had accompanied

PW4, has given evidence in support of the version given

by PW4.

13. PWs 1 and 2, the independent witnesses, did not

support the prosecution case. PW4 conducted investigation Crl.A.No.2366 of 2008

and submitted final report before the Court against the

accused.

14. The learned counsel for the appellant/accused

contended that the prosecution failed to establish that

the sample stated to have been drawn from the contraband

substance at the place of occurrence eventually was

subjected to analysis at the Chemical Examiner's

laboratory.

15. The learned counsel for the appellant/acccused

relied on the following circumstances to substantiate his

contentions:

(a) The official witnesses have not given evidence as

to the nature and description of the seal affixed

on the bottle containing the sample.

(b) Ext.P1, seizure mahazar, is silent regarding the

nature and description of the seal said to have

been used.

(c) The prosecution failed to establish that the

specimen impression of the seal said to have been Crl.A.No.2366 of 2008

affixed on the bottle containing the sample was

provided to the Chemical Examiner for

verification so as to rule out the possibility of

tampering with the sample.

15. PW4, the detecting officer and PW5, the Excise

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 bottle containing

the sample. Ext.P1, seizure mahazar being the

contemporaneous document evidencing seizure, is silent

regarding the nature and description of the seal stated

to have been affixed on the bottle containing the sample.

16. The prosecution also failed to produce the

specimen impression of the seal before the court. There

is also no evidence to show that the specimen impression

of the seal had been forwarded to the Chemical Examiner

for verification to ensure that the sample seal so

provided was tallying with the seal affixed on the bottle

containing the sample.

Crl.A.No.2366 of 2008

17. 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 affixed on the bottle containing the

sample is required to be forwarded to the Chemical

Examiner for verification to ensure that the sample seal

so provided is tallying with the seal affixed on the

bottle containing the sample. [vide: Bhaskaran v. State

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

State of Kerala (2019 KHC 191), Majeedkutty v. Excise

Inspector [(2015) 1 KHC 424] and Achuthan v. State of

Kerala [ILR 2016 (2) Ker. 145]].

18. There is absolutely no evidence as to the nature

and description of the seal stated to have been used by

the detecting officer and that the same had been provided

to the Chemical Examiner. The copy of the forwarding

note, which contains the specimen impression of the seal Crl.A.No.2366 of 2008

and the name of the official with whom the sample is

entrusted for delivering the same to the Chemical

Examiner's laboratory, has not been produced and marked

in this case.

19. In Ramachandran v. State of Kerala [2021 (1) KLT

793], while dealing with a case in which forwarding note

was not produced and marked, this Court held thus:

"Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt."

20. 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 Crl.A.No.2366 of 2008

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".

21. Ext.P8, the certificate of chemical analysis,

would show that the bottle containing the sample was

forwarded to the Chemical Examiner's laboratory by the

Judicial First Class Magistrate Court, Wadakkanchery as

per letter No.PI 59/2006 dated 23.02.2006. Ext.P8 would

further show that sample was received by the laboratory

on 06.05.2006 through an Excise Guard by name Manoj

Kumar.

22. Prosecution has not adduced any evidence as to

the date on which the sample was forwarded to the

Chemical Examiner's laboratory and also there is no

material to see the name of the person with whom the

sample was entrusted for delivering the same to the

Chemical Examiner's laboratory, from the court. Ext.P8

would further show that one Manoj Kumar M.M., delivered Crl.A.No.2366 of 2008

the sample to the Chemical Examiner's laboratory on

06.05.2006. In the absence of any other material to show

the date on which the sample was received by the Excise

Official concerned from the court, this Court has to

infer that the sample was handed over to the Official

concerned on 23.02.2006. The sample reached the Chemical

Examiner's laboratory on 06.05.2006, after a lapse of

more than two months.

23. This Court is in the dark as to the name of the

official who actually received the sample from the court.

In such a situation, it was imperative for the

prosecution to examine the official concerned of the

court who handed over the sample to the Excise Official

who received the same or the Excise Official, who

delivered the sample to the Chemical Examiner's

laboratory to establish tamper proof despatch of the

sample from the court to the laboratory. (vide:

Viswanathan v. State of Kerala [(2016) 3 KHC 38], Kumaran

v. State of Kerala [2016 (4) KLT 718]). Crl.A.No.2366 of 2008

24. The non-examination of those officials is fatal

to the prosecution.

25. In view of the fact that there is no evidence to

convince the court that the specimen impression of the

seal had been provided to the Chemical Examiner the

prosecution failed to satisfactorily establish that the

sample was despatched to the laboratory in a tamper-proof

condition. Resultantly no evidentiary value can be given

to Ext.P8 chemical analysis report.

26. In the instant case, admittedly the sample

remained in the custody of the officials concerned of the

court, the Excise official who received the same from the

court and the Excise official who delivered the sample to

the Chemical Examiner's laboratory. None of these

witnesses were examined by the prosecution to prove that

while in their custody the seal was not tampered with.

The inevitable effect of this omission is that the

prosecution failed to rule out the possibility of the

sample being changed or tampered with during the period, Crl.A.No.2366 of 2008

a fact which had to be proved affirmatively by the

prosecution. ((vide: State of Rajasthan v. Daulat Ram

[(1980) 3) SCC 303], Sathi v. State of Kerala [2007 (1)

KHC 778], Sasidharan v. State of Kerala [2007 (1) KLT

720]).

27. 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.

28. 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

said to have been seized from the possession of the

accused.

29. In the instant case, the prosecution was unable

to establish the link connecting the accused with the Crl.A.No.2366 of 2008

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.

30. The trial court passed the impugned judgment of

conviction and sentence overlooking these vital aspects

of the matter. The judgment of conviction and sentence is

liable to be set aside. The appellant/accused is

therefore not guilty of the offence punishable under

Section 58 of the Abkari Act. He is acquitted of the

charge levelled against him. He is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU, JUDGE AS