Thayyil Veettil Koyitti Anoop vs State Of Kerala
2021 Latest Caselaw 15618 Ker

              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. 2968 OF 2008
 AGAINST THE JUDGMENT IN SC 469/2007 OF ADDITIONAL SESSIONS COURT
                     (ADHOC)-II, THALASSERY, KANNUR
APPELLANT/ACCUSED:

            THAYYIL VEETTIL KOYITTI ANOOP
            AGED 26 YEARS, S/O. GOVINDAN,
            MARUVANCHERRY CHALIL, SIVAPURAM AMSOM,
            KANHILERI DESOM, THALASSERY.

            BY ADVS.
            SRI.V.V.ASOKAN
            SRI.P.P.RAMACHANDRAN



RESPONDENT/COMPLAINANT:

            STATE OF KERALA
            (EXCISE INSPECTOR, MATTANNUR EXCISE RANGE),
            REPRESENTED BY PUBLIC PROSECUTOR,
            HIGH COURT OF KERALA, ERNAKULAM.




            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. 2968 OF 2008               2




                            K.BABU, J.
                    =====================
                        Crl.A.No.2968 of 2008
                    =====================
                     Dated this the 27th July, 2021




                                 JUDGMENT

Challenge in this appeal is to the judgment dated

29.11.2008 in S.C.No.469/2007 of the Additional Sessions Court,

Adhoc II, Thalassery. The accused was convicted of the offence

punishable under Section 58 of the Abkari Act by the impugned

judgment.

2. The prosecution case is that on 12.9.2005 at 7 am., the

accused was found in possession of 20 litres of illicit arrack in an

autorickshaw bearing registration No.KL-13J-4965 at Sivapuram

in Kannur district. The offence was detected by the Assistant

Excise Inspector, Mattannur Range.

4. After completion of investigation, final report was

submitted against the accused for offence punishable under

Section 8(2) of the Abkari Act before the Judicial First Class

Magistrate Court, Mattannur. The case was committed to the

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

Additional Sessions Court, Thalassery. On appearance of the

accused, charge was framed against him for offence punishable

under Section 8(2) of the Abkari Act. The accused pleaded not

guilty and therefore, he came to be tried by the trial court for the

aforesaid offence.

5. The evidence for the prosecution consists of the oral

evidence of PWs 1 to 4 and Exts.P1 to P9.

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 total 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 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. He was sentenced to undergo rigorous

imprisonment for a term of two years and to pay a fine of

Rs.1,00,000/- under Section 58 of the Abkari Act.

7. Heard Sri.P.P.Ramachandran, the learned counsel

appearing for the appellant/accused and Sri.M.S.Breez, the

learned Senior Public Prosecutor appearing for the respondent.

8. The learned counsel for the appellant contended that

the prosecution failed to establish that the contraband substance

allegedly recovered from the possession of the accused was

subjected to analysis in the Chemical Examiner's laboratory.

9. The learned Public Prosecutor, per contra, submitted

that the prosecution could well establish the charge against the

accused. He contended that sufficient materials are there to

establish the prosecution case.

10. 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

11. PW1, the then Assistant Excise Inspector, Mattannor

was conducting vehicle checking at Shivapuram in Kolari amson

on 12.9.2005 in the early morning. An autorickshaw bearing

registration No.KL-13J-4965 driven by the accused reached the

spot and the team led by PW1 inspected the vehicle. The excise

officials found a black plastic can underneath the passenger's

seat, which on examination was found to be illicit arrack. The can

contained 20 litres of arrack. PW1 seized the plastic can and 200

ml of arrack was drawn in another bottle as sample. The sample

and the residue were sealed. PW1 prepared Ext.P1 seizure

mahazar. The accused was arrested. The vehicle involved was

also taken into custody by PW1. PW2, an independent witness

examined to prove the incident proper, supported the prosecution

case. PW4, the then Excise Inspector, Mattannoor conducted

investigation and submitted final report.

12. The learned counsel for the appellant relied on the

following circumstances to establish that the prosecution failed to

prove that the contraband substance allegedly drawn from the

place of occurrence was eventually subjected to examination at

the Chemical Examiner's laboratory:

a) PW1, the detecting officer, has not given

evidence as to the nature and description of the

seal affixed on the bottle containing the sample.

b) Ext.P1 seizure mahazar, the

contemporaneous document evidencing seizure, is

silent regarding the nature and description of the

seal used.

                   c)      The specimen impression of the seal has

              not been produced before the court and made

              available     to   the    Chemical    Examiner      for





            verification.

13. The oral evidence of PW1 is silent regarding the nature

and description of the seal affixed on the bottle containing the

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

nature and description of the seal used. 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. [vide:

Bhaskaran v. State of Kerala and another (2020 KHC

5296), Krishnadas v. State of Kerala (2019 KHC 191)]

14. Ext.P9 copy of the forwarding note does not contain

the specimen impression of the seal affixed on the bottle

containing the sample. There is absolutely no evidence to show

that the specimen impression of the seal was provided to the

Chemical Examiner for verification, so as to ensure that the

sample seal so provided was tallied with the seal affixed on the

bottle containing the sample. Ext.P8 contains a certification that

the seal on the bottle was intact and found tallied with the sample

seal provided. In the absence of any positive evidence to show

that the specimen impression of the seal was forwarded to the

Chemical Examiner's laboratory, the certification contained in

Ext.P8 cannot be accepted. The necessary conclusion is that the

genuineness of the sample tested is doubtful.

15. This Court had occasion to consider a similar fact

situation in Rajamma v. State of Kerala (2014(1) KLT 506) in

which it was 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".

16. 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.P8 chemical analysis report.

17. Ext.P9 copy of the forwarding note is also silent with

regard to the name of the person with whom the sample was sent

for analysis. Ext.P8 would show that the sample was received in

the laboratory through an Excise Guard Sri.Ratheesh C.P. There

is no explanation as to why the space meant for writing the name

of the Excise Guard with whom the sample was sent for analysis

remained vacant in Ext.P9 copy of the forwarding note.

18. The learned Magistrate had not counter signed in

Ext.P9. There is no evidence to show the date on which the

sample was forwarded to the Chemical Examiner's laboratory. It

is the admitted case of the prosecution that the sample changed

several hands before it reached the Chemical Examiner's

laboratory. The sample remained in the custody of the property

clerk of the court, the excise official who received the sample

from the court and the excise official Sri.Ratheesh C.P, 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.

It was imperative for the prosecution to examine these witnesses

to prove the tamper-proof despatch of the sample to the

laboratory. 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-a fact which had to

be proved affirmatively by the prosecution. (vide: State of

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

State of Kerala (2016(4) KLT 718)

19. 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.

20. 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: State of Rajasthan v. Daulat

Ram [AIR(1980)SC 1314].

21. 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.

The appellant/accused is therefore not guilty of the offence

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

the charge. He is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU JUDGE ab