Swapanan vs State Of Kerala
2021 Latest Caselaw 15621 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. 2160 OF 2006
 AGAINST THE JUDGMENT IN SC 940/2001 OF ADDITIONAL DISTRICT
      AND SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:

         SWAPANAN
         S/O.RAVI, LEKSHAM VEEDU,
         KOITHOORKONAM, VELLOOR MURI,
         ANDOORKONAM MURI.

         BY ADVS.
         SRI.SASTHAMANGALAM S. AJITHKUMAR
         SRI.DILEEP P.PILLAI
         SRI.RENJITH B.MARAR
         SRI.T.K.SUJITH



RESPONDENT/COMPLAINANT:

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

          BY SR. PUBLIC PROSECUTOR SRI. M.S. BREEZ




     HIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
27.07.2021,    THE   COURT   ON   THE   SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.A No.2160 of 2006                     2




                                      K.BABU, J.
                              =====================
                                Crl.A No.2160 of 2006
                             =====================
                             Dated this the 27th day of July, 2021



                                         JUDGMENT

Challenge in this appeal is to the judgment dated

10.10.2006 in S.C.No.940/2001 passed by the Additional District

and Sessions Judge, Fast Track No.II (Adhoc),

Thiruvananthapuram. The appellant/accused was convicted of

the offence punishable under Section 55(a) of the Abkari Act by

the learned Additional Sessions Judge by way of the impugned

judgment.

2. The prosecution case is that on 5.2.1998 at 3 pm., the

accused was found carrying 5 litres of arrack in a plastic can

through the Konnoorkonam-Pallipuram road. PW4, the Excise

Preventive Officer, attached to the Excise Enforcement Special

Squad, Thiruvananthapuram, detected the offence.

3. After completing investigation, final report was

submitted against the accused for the offence punishable under

Section 8(1) r/w 58 of the Abkari Act before the Judicial First

Class Magistrate Court II, Attingal. The case was committed to

the Sessions Court, Thiruvananthapuram from where it was made

over to the Additional Sessions Court, Thiruvananthapuram. On

appearance of the accused charge was framed against him for the

offence punishable under Section 8(1) r/w 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.

4. The evidence for the prosecution consists of oral

evidence of PWs 1 to 6, Exts.P1 to P7 and MO1.

5. 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 learned trial court, after hearing

arguments addressed from both sides, found that the accused is

guilty of offence under Section 55(a) of the Abkari Act and he was

convicted thereunder. The accused was sentenced to undergo

rigorous imprisonment for a term of 1½ years and to pay a fine of

Rs.1,00,000/- under Section 55(a) of the Abkari Act.

6. Heard Sri.Sasthamangalam S.Ajithkumar, the learned

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

the learned Senior Public Prosecutor appearing for the

respondent.

7. The learned counsel for the appellant contended that

the prosecution failed to establish that the contraband substance

said to have been seized from the possession of the accused

eventually reached the hands of the Analyst at the Chemical

Examiner's laboratory.

8. 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.

9. 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

10. PW4, the Preventive Officer, Excise Enforcement

Special Squad, Thiruvananthapuram, detected the offence. He

gave evidence that on the date of occurrence, while the excise

team led by him was on patrol duty, the accused was found

carrying 5 litres of illicit arrack in a plastic can on the

Konnoorkonam-Pallipuram road. PW4 seized the contraband

substance from the possession of the accused as per Ext.P1

seizure mahazar. The accused was arrested by PW4. PW4 sealed

the can containing illicit arrack at the place of occurrence.

11. PW5, the Excise Inspector, Kazhakuttom Excise Range,

registered Ext.P4 occurrence report alleging the aforesaid

offence against the accused. He prepared Ext.P5 property list and

produced the contraband substance before the court.

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

support the prosecution case. PW3, another Preventive Officer

who had accompanied PW4, also supported the prosecution case.

PW6, the Excise Range Officer, Kazhakoottam, conducted

investigation and submitted final report.

13. The learned counsel for the appellant contended that

the prosecution has not succeeded in establishing that the

contraband substance allegedly seized from the possession of the

accused was subjected to analysis at the Chemical Examiner's

laboratory. The learned counsel for the appellant relied on the

following reasons to substantiate his contentions:

a) PW4, the detecting officer, and the other

official witness who had accompanied him at the time

of seizure, have not given evidence as to the nature

and description of the seal affixed on the can

containing the contraband substance.

b) Ext.P1 seizure mahazar is also silent

regarding the nature and description of the seal used

by the detecting officer at the place of occurrence.

c) No sample was drawn from the article

allegedly seized from the place of occurrence by the

detecting officer.

d) There is no evidence to show that the

specimen impression of the seal, stated to have been

affixed on the bottle containing the sample drawn

from the contraband substance by the official of the

court, had been provided to the Chemical Examiner

for comparison.

14. The learned counsel for the appellant, firstly,

contended that there is no assurance that the contraband

substance allegedly seized from the place of occurrence was

actually placed before the court. The learned counsel submitted

that there is nothing on record to show that the contraband

substance was sealed at the place of occurrence.

15. The oral evidence of PW4, the detecting officer, and

the excise official who had accompanied him, is silent regarding

the nature and description of the seal stated to have been affixed

on the can containing the contraband at the place of occurrence.

Ext.P1 seizure mahazar is also silent regarding the nature and

description of the seal used by the detecting officer at the place

of occurrence.

16. The detecting officer was expected to give evidence on

the nature and description of the seal used at the place of

occurrence.

17. It is admitted by the prosecution that no sample was

drawn at the place of occurrence. The contraband substance

allegedly seized from the place of occurrence was produced

before the court on 6.2.1998 as per Ext.P5 property list. Ext.P7

certificate of chemical analysis would show that one sealed bottle

containing 200 ml of clear and colourless liquid alleged to be

arrack involved in C.R No.5/1998 of Kazhakuttam Range was

received by the Chemical Examiner as per letter No.T73/98 dated

6.2.1998 of the Judicial First Class Magistrate Court II, Attingal.

I have carefully gone through the oral evidence of the official

witnesses, who supported the prosecution case. Their evidence is

silent as to who had drawn the sample from the contraband

substance produced before the court. No evidence has been

produced by the prosecution to establish that the learned

Magistrate directed any official of the court, who was in charge

of the properties involved, to take a specified measure of sample

from the bulk quantity received in this case and to despatch the

same in a tamper proof condition to the Chemical Examiner's

laboratory. What can be inferred from Ext.P7 certificate of

chemical analysis is that somebody might have taken sample

from the bulk quantity of arrack and might have despatched the

same under a covering letter of the learned Magistrate as

mentioned above. This Court is in the dark as to who took the

sample and on which date and how much quantity and also

whether it was despatched in a tamper proof condition. Yet

another aspect which requires consideration is that Ext.P6 copy

of the forwarding note does not say that the specimen impression

of the seal had been forwarded to the Chemical Examiner for

facilitating verification of the seal affixed on the bottle containing

the sample so as to see that it was tallied with the specimen.

Absolutely no evidence to show that the specimen impression of

the seal was forwarded to the Chemical Examiner.

18. In Rajamma v. State of Kerala (2014(1) KLT

506), this Court had occasion to consider a similar fact

situation and 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".

19. There is lack of evidence as to the date on which the

sample was forwarded to the Chemical Examiner's laboratory.

Ext.P6, the copy of the forwarding note, does not contain any

endorsement that the excise official, who delivered the sample to

the Chemical Examiner, himself actually received the same from

the court.

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

several hands before it reached the Chemical Examiner's

laboratory. It remained in the custody of the official concerned of

the court, who received the contraband substance, the officials of

the court, who had taken the sample and the excise official who

received the sample from the court. None of these witnesses

were examined by the prosecution to prove that while in their

custody, the seals were not tampered with. The prosecution

ought to have established that the sample was collected from the

bulk quantity produced before the court under the supervision of

a responsible officer. The prosecution failed to establish that the

sample was collected, from the contraband substance produced,

in a transparent manner, so as to rule out any possibility of the

sample being changed or tampered with. The inevitable effect of

this omission is that the prosecution failed to rule out the

possibility of the sample being tampered with. (vide: State of

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

21. The quantity of the contraband substance allegedly

seized from the possession of the accused was 5 litre of arrack in

a black jerry can. A perusal of the appendix of the judgment

would show that MO1 can marked during the trial had contained

5 litres of illicit arrack. This also raises some suspicion as to

whether the contraband substance subjected to analysis at the

Chemical Examiner's laboratory was the very same substance

drawn from the bulk quantity produced before the court. In view

of the above discrepancies, affecting the genuineness of the

sample subjected to analysis, no evidentiary value can be given to

Ext.P7 certificate of chemical analysis.

22. 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.

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

[AIR(1980)SC 1314].

24. 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 8(1) r/w 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