Kerala High Court
Krishnankutty,S/O Kunju vs State Of Kerala,Rep.By on 27 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
CRL.A NO. 1881 OF 2006
AGAINST THE JUDGMENT DATED 16.09.2006 IN S.C.NO.17/2006 OF THE
IIIRD ADDITIONAL SESSIONS JUDGE, (ADHOC), FAST TRACK COURT
NO.1, THRISSUR.
APPELLANTS/ACCUSED NOS.2 AND 4:
1 KRISHNANKUTTY,S/O KUNJU,
MADATHIPARAMBAN HOUSE, MATTATHUR VILLAGE,,
KUNJALIPARA DESOM.
2 SHAIJU, S/O.VIJAYAN
KATTUNGAL HOUSE, MATTATHUR VILLAGE,
KUNJALIPARA DESOM.
BY ADVS. SRI.P. VIJAYA BHANU
PRASUN.S,
RESPONDENT/COMPLAINANT-STATE:
STATE OF KERALA, REP.BY
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
OTHER PRESENT:
SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.1881 of 2006
2
K. BABU J.
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Crl.A.No.1881 of 2006
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Dated this the 27th day of July, 2021
J U D G M E N T
Aggrieved by the judgment dated 16.09.2006, passed by
the learned III Additional Sessions Judge, (Adhoc), Fast
Track Court No.1, Thrissur in SC.No.17/2006, the two
accused (A2 & A4) have preferred this appeal.
2. The trial court convicted the accused for the
offence punishable under Section 55(b) of the Kerala
Abkari Act.
3. The prosecution case is that the
appellants/accused Nos.2 and 4 and the other accused in
this case were found distilling arrack, using Wash and
utensils, in the revenue puramboke land lying on the
southern side of the rocky area, about 50 meters away
from the house with door No.IV/189 of Mattathur
Crl.A.No.1881 of 2006
Panchayat, at Kunhalippara desom in Mattathur Village at
about 06.15 a.m., on 12.08.2000. The Circle Inspector of
Excise attached to Excise Enforcement and Anti Narcotic
Special Squad, Thrissur, detected the offence.
4. After completion of the investigation final
report was submitted against the appellant/accused Nos.2
and 4 for the offences punishable under Sections 55(a),
(b), (g) and 8(1) r/w Section 8(2) of the Abkari Act
before the Judicial First Class Magistrate Court,
Chalakudy.
5. The case was committed to the Sessions Court,
Thrissur, from where it was made over to the Additional
Sessions Judge, (Adhoc-III), Fast Track Court No.1,
Thrissur. On appearance of the accused charge was framed
against them for the offence punishable under Section
55(b) 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
Crl.A.No.1881 of 2006
oral evidence of PWs 1 to 6 and Exts.P1 to P6 and MOs 1
to 12.
7. After closure of the evidence on behalf of the
prosecution, the statements of the accused under Section
313 Cr.P.C were 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
to adduce evidence, if any, they may have in support
thereof. The learned trial court, after hearing arguments
addressed from both sides, found that the accused are
guilty of offence under Section 55(b) of the Abkari Act
and they were convicted thereunder. The accused were
sentenced to undergo simple imprisonment for a term of
three years each and to pay a fine of Rs.1,00,000/- each
under Section 55(b) of the Abkari Act.
8. Heard Sri. P. Vijaya Bhanu, the learned Senior
Counsel appearing for the appellants/accused Nos.2 & 4
and Sri. M.S. Breez, the learned Senior Public Prosecutor
Crl.A.No.1881 of 2006
appearing for the respondent.
9. The learned Senior Counsel for the
appellants/accused Nos.2 & 4 contended that the
prosecution failed to establish that the contraband
substance stated to have been seized from the place of
occurrence ultimately reached the Chemical Examiner's
laboratory.
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. CW1, the Circle Inspector of Excise attached to
Excise Enforcement and Anti Narcotic Special Squad,
Thrissur, on 12.08.2000, was leading an Excise party in
Mattathur Village. At about 06.15 a.m., they reached
Kunhalippara desom in Mattathur Village. The Excise team
Crl.A.No.1881 of 2006
found the appellants/the other accused engaged in
distilling arrack.
13. PW1, an Excise Guard, who had accompanied CW1
gave evidence that he was on patrol duty on the relevant
day and when they reached near irrigation canal bund at
Kunhalippara desom, they got reliable information that
some persons were engaged in distilling of arrack in the
place of occurrence. The Excise party proceeded to the
place of occurrence. The accused Nos.1 to 4 were found
manufacturing arrack behind a rock. PW1 deposed that the
CI of Excise (CW1) seized MOs. 1 to 12 from the
possession of the accused. The articles seized included
35 liters of Wash in Aluminium Vessels and 15 liters of
arrack in a plastic Can. The Excise team also seized
other utensils used for distilling arrack from the
possession of the accused. PW1 has given evidence that
CW1 collected 500 ml of arrack and 500 ml of Wash from
the contraband substance in 2 bottles as sample and
sealed the same. PW1 deposed that the residue of the Wash
Crl.A.No.1881 of 2006
found at the place of the occurrence was destroyed and
the rest of the articles were produced before the court.
14. PW6, the Excise Preventive Officer, who was a
member of the Excise team led by CW1, supported the
prosecution version.
15. PW2, an independent witness examined to prove
the incident proper, did not support the prosecution
case.
16. PW3, the Excise Preventive Officer attached to
Excise Range Office, Irinjalakuda, received the articles
produced before the Excise Office by CW1 and obtained the
custody of the accused. The accused and the articles were
produced before the court on 12.08.2000 itself. PW4
conducted initial investigation. PW5 continued the
investigation and submitted final report before the
Court.
17. The learned Senior Counsel for the
appellants/accused relied on the following circumstances
to substantiate his contentions:
Crl.A.No.1881 of 2006
(a) The prosecution failed to establish that the
contraband substance allegedly recovered from
the place of occurrence was actually subjected
to analysis in the Chemical Examiner's
laboratory.
(b) The official witnesses have not given evidence
as to the nature and description of the seal
affixed on the bottles containing the sample.
(c) Ext.P1 seizure mahazar, the contemporaneous
document evidencing seizure, does not contain
any narration as to the nature and description
of the seal affixed on the bottles containing
the sample.
(d) The copy of the forwarding note, which contains
the specimen impression of the seal, has not
been produced before the court.
(e) There is no evidence to show that the properties,
including the sample, allegedly recovered from
the place of occurrence were produced before the
Crl.A.No.1881 of 2006
court.
18. The oral evidence of the official witnesses is
silent regarding the nature and description of seal
affixed on the bottles containing the sample. Ext.P1,
seizure mahazar, does not contain the nature of the seal
stated to have been affixed on the bottles containing the
sample.
19. The detecting officer, who has drawn the sample,
has to give evidence as to the nature of the seal affixed
on the bottles 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.
[vide: Bhaskaran v. State of Kerala and another (2020
KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)].
20. The learned Senior Counsel for the
appellants/accused submitted that there is no documents
to show that the articles allegedly recovered from the
place of occurrence were produced before the court
without any delay. It is pertinent to note that no
Crl.A.No.1881 of 2006
property list has been prepared and produced before the
court. Ext.P2, the crime and occurrence report, prepared
on 12.08.2000, contains the details of the articles
seized from the place of occurrence. There is nothing to
show the date on which Ext.P2 was produced before the
court. PW3, the Excise Preventive Officer, gave evidence
that the articles were produced before the court on
12.08.2000 itself. His oral evidence is not corroborated
by any contemporaneous document. The specimen impression
of the seal has not been produced before the court. The
copy of the forwarding note, which contains the specimen
impression, has also not been produced and marked in this
case.
21. 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
Crl.A.No.1881 of 2006
in a tamper-proof condition. In the said
circumstances also, the appellant is entitled to
benefit of doubt."
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. 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.
24. Ext.P5, certificate of Chemical analysis,
contains a certification that the seals on the bottles
were intact and found tallied with the sample seal
Crl.A.No.1881 of 2006
provided. Prosecution has not adduced any evidence to
show that the specimen impression of the seal was
produced before the court and the same was forwarded to
the Chemical Examiner. In the absence of any evidence to
show that the specimen impression of the seal was
forwarded to the Chemical Examiner the certification
contained in Ext.P5 cannot be accepted.
25. This Court is in the dark as to the date on
which the bottles containing the samples were forwarded
to the Chemical Examiner's laboratory. Ext.P5 would show
that sealed bottles were forwarded to the Chemical
Examiner's laboratory as per letter dated 26.09.2000 of
the Judicial First Class Magistrate Court, Chalakkudy.
It is pertinent to note that the Chemical Examiner
analysised samples received on 20.09.2000. This is a
serious infirmity which gives rise to a suspicion as to
whether the contraband substance allegedly seized from
the place of occurrence was subjected to analysis in the
Chemical Examiner's laboratory.
Crl.A.No.1881 of 2006
26. There is also no convincing evidence to show as
to through whom the articles including samples were
produced before the court. There is lack of evidence as
to with whom the samples were sent to the Chemical
Examiner's laboratory. If the list of properties had been
produced and marked before the court, it would have been
possible to ascertain the name of the official who
produced the properties before the court.
27. It is the admitted case of the prosecution that
the samples changed several hands before it reached the
Chemical Examiner's laboratory. In other words, the
samples remained in the custody of the official of the
court who received the same from the Excise official and
the Excise official who received the samples from the
court to be delivered 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
Crl.A.No.1881 of 2006
possibility of the samples being changed or tampered with
during the period-a fact which had to be proved
affirmatively by the prosecution. (vide: State of
Rajasthan v. Daulat Ram [(1980) 3) SCC 303]).
28. Ext.P5, certificate of Chemical analysis, shows
that the sample reached the laboratory on 20.09.2000 and
the same was analysised on 05.11.2001. The delay in the
analysis of the sample has not been satisfactorily
explained.
29. 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."
Crl.A.No.1881 of 2006
30. In the instant case, the long delay in the
analysis of the sample remains unexplained.
31. In view of the above discussed infirmities, no
evidentiary value can be attached to Ext.P5, certificate
of Chemical analysis.
32. 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.
33. 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. (vide: Sathi v. State of Kerala [2007 (1) KHC
778], Sasidharan v. State of Kerala [2007 (1) KLT 720]).
34. In the instant case, the prosecution was unable
Crl.A.No.1881 of 2006
to establish the link connecting the accused with the
contraband seized and the sample analysed in the
laboratory. The accused are entitled to benefit of doubt
arising from the absence of link evidence as discussed
above.
35. The upshot of the above discussion is that the
conviction entered by the court below overlooking these
vital aspects of the matter cannot therefore be
sustained. The appellants/accused are therefore not
guilty of the offence punishable under Section 55(b) of
the Abkari Act. They are acquitted of the charge levelled
against them. They are set at liberty.
The Crl.Appeal is allowed as above.
Sd/-
K. BABU, JUDGE
AS
