Shahida vs State Of Kerala
2021 Latest Caselaw 15680 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                  PRESENT
                     THE HONOURABLE MR.JUSTICE K. BABU
        FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
                           CRL.A NO. 615 OF 2007

AGAINST THE JUDGMENT IN SC NO.88/2002 ON THE FILE OF THE ADDITIONAL
SESSIONS JUDGE (ABKARI CASES), KOTTARAKKARA DATED 16.03.2007.
APPELLANT/ACCUSED:

           SHAHIDA,
           D/O. PATHUMMA BEEVI,
           NIZHA MANZHIL,
           MARAVOORKONAM, KURAVANTHERI,
           MOONGOODU MURI, ALAYAMON VILLAGE,
           ANCHAL, KOLLAM DISTRICT.

           BY ADV B.MOHANLAL



RESPONDENT/COMPLAINANT:

           STATE OF KERALA
           REPRESENTED BY CIRCLE INSPECTOR OF POLICE,
           ANCHAL, KOLLAM DISTRICT
           THROUGH THE PUBLIC PROSECUTOR,
           HIGH COURT OF KERALA, ERNAKULAM.

           SRI. M.S. BREEZ, SENIOR PUBLIC PROSECUTOR

     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.07.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 CRL.A NO. 615 OF 2007
                                        -2-

                                 K. BABU, J.
                     --------------------------------------
                            Crl.A.No.615 of 2007
                     --------------------------------------
                     Dated this the 30th day of July, 2021

                               JUDGMENT

Aggrieved by the judgment dated 16.03.2007, passed by the

learned Additional Sessions Judge (Abkari cases) Kottarakkara in

SC.No.88/2002, the accused has preferred this appeal.

2. The trial court convicted the accused/appellant for the

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

3. The prosecution case is that on 16.02.2000 at about 19.25

hours, the accused was found in possession of illicit arrack in 20

polythone packets each containing 150 ml in front of Niza Manzil,

Maravoorkonam, Kuravan therri. The offence was detected by the S.I

of Police, Anchal.

4. After completion of investigation, final report was

submitted against the appellant for the offences punishable under

Sections 55(a) and 55(i) of the Abkari Act before the Judicial First

Class Magistrate Court-I, Punalur.

5. The case was committed to the Sessions Court, Kollam, CRL.A NO. 615 OF 2007

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

Kottarakkara. On appearance of the accused, charges were framed

against her for the offences punishable under Sections 55(a) and

55(i) of the Abkari Act. The accused pleaded not guilty and therefore,

she came to be tried by the trial court for the aforesaid offences.

6. The evidence for the prosecution consists of the oral

evidence of PWs.1 to 5, Exts.P1 to P5 and MOs.1 to 3.

7. After closure of the evidence on behalf of the prosecution,

the statement of the accused under Section 313 Cr.P.C was recorded.

She 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 she was called upon to enter on her defence and

to adduce evidence, if any, she may have in support thereof.

8. The learned trial court, after hearing arguments addressed

from both sides, found that the accused was guilty of offence under

Section 55(a) of the Abkari Act and she was convicted thereunder.

The accused was acquitted of the offence under Section 55(i) of the

Abkari Act. The accused was sentenced to undergo rigorous

imprisonment for a term of two years and to pay a fine of CRL.A NO. 615 OF 2007

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

9. Heard Sri. B.Mohanlal, 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 and

sentence:

(a) The prosecution failed to establish the identity of the

person, who was allegedly possessing the contraband

substance at the place of occurrence.

(b) The prosecution has not satisfactorily explained the delay

in the production of the properties before the court.

(c) The prosecution has not succeeded in establishing that

the contraband substance said to have been seized from

the place of occurrence was eventually subjected to

analysis in 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 CRL.A NO. 615 OF 2007

conviction entered and the sentence passed against the

appellant/accused are sustainable or not.

THE POINT

13. PW5, the Circle Inspector of Police, Anchal, detected the

offence. He has given evidence that, on 16.06.2000 while he was on

patrol duty, on getting reliable information that illicit arrack was

being sold at the place of occurrence, the police team led by him

reached there at 7.15 p.m.

14. According to PW5, on seeing the Police party, a lady who

was found carrying a plastic cover ran away from the scene. PW5

found that the plastic cover contained 20 polythene packets each

containing 150 ml of liquor. PW5 seized the articles found in the place

of occurrence as per Ext.P1 seizure mahazar. PW5 opened one of the

packets and ascertained that it contained illicit arrack. PW5 opened

three more packets and the contents therein were poured into two

bottles and sealed them. According to PW5, he had previous

acquaintance with the lady, who left the place of occurrence after

abandoning the contraband substances.

15. PW3, a police official, who had accompanied PW5 CRL.A NO. 615 OF 2007

supported the prosecution version. But he has given evidence that he

had no previous acquaintance with the accused. PW4 conducted

investigation and submitted final report.

16. The learned counsel for the appellant/accused submitted

that the prosecution failed to establish the identity of the person who

was in possession of the contraband substance at the scene of

occurrence. The case of the prosecution is that on seeing the Police

team, a lady who was carrying a plastic cover left the place of

occurrence abandoning the bag she had possessed. PW5 has given

evidence that he had previous acquaintance with the accused. He

clarified that as the accused had another case involving Abkari

offence, he got acquaintance with her. It is pertinent to note that in

Ext.P1, the contemporaneous document prepared by PW5 at the

scene of occurrence, did not contain the fact that he had previous

acquaintance with the accused. In Ext.P1, PW5 specifically stated

that on seeing the police party, "a lady" ran away from the scene

leaving a plastic bag she had possessed. Moreover, Ext.P5 report

submitted by PW5 would show that the person named in the FIR was

not the person involved in the offence. Ext.P5 was submitted before CRL.A NO. 615 OF 2007

the court by PW5 to rectify the mistake in the name of the person

mentioned in the FIR. In view of the fact that, in Ext.P1 seizure

mahazar, PW5 failed to mention that he had previous acquaintance

with the accused and that as per Ext.P5, the person named in the FIR

was corrected the evidence of PW5 to the effect that he had previous

acquaintance with the accused cannot be accepted. Hence I hold that

the version of PW5 to the effect that he had previous acquaintance

with the accused is not credible. As mentioned above, PW3, the other

official witness had no previous acquaintance with the accused. No

independent witnesses supported the prosecution case. PWs.3 and 5

identified the accused in February 2007 after a long lapse of 7 years.

Going by the evidence of PWs.3 and 5, they would have had only a

fleeting glimpse of the accused as admittedly they had seen the

accused from a distance of 50 meters that too at 7.25 p.m. PWs.3

and 5 had no opportunity to see the accused after the incident.

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 CRL.A NO. 615 OF 2007

absolutely valueless unless there has been a previous test

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/accused had any opportunity

to see him after the incident and they identified him in the court after

a long lapse of seven years. This Court, hence, comes to the

conclusion that prosecution failed to establish the identity of the

person who was allegedly possessing the contraband substance at

the place of occurrence.

19. The learned counsel for the appellant further contended

that the delay in the production of the properties before the court has

not been explained by the prosecution. As is evident from Ext.P3, the CRL.A NO. 615 OF 2007

articles including the sample seized from the place of occurrence on

16.06.2000 were produced before the court only on 21.06.2000. The

prosecution has not offered any satisfactory explanation for the delay

in the production of the properties before the court.

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. 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 CRL.A NO. 615 OF 2007

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

contraband substance allegedly seized from the place of occurrence,

was actually analysed in the Chemical Examiner's laboratory.

23. The learned counsel for the appellant/accused relied on

the following circumstances to establish his contentions:

(a) The delay in the production of the properties including the

sample has not been properly explained.

(b) The detecting officer has not given evidence as to the

nature and description of the seal affixed on the bottle

containing the sample.

(c) Ext.P1, seizure mahazar, is silent about the nature and

description of the seal used by the detecting officer.

(d) The prosecution failed to establish that the specimen

impression of the seal was provided to the Chemical

Examiner to ensure that the seal affixed on the bottle

containing the sample was tallying with the specimen

provided.

CRL.A NO. 615 OF 2007

24. PW5, the detecting officer and PW3, the other official

witness, who had accompanied PW5 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, is also

silent with regard to the specimen impression of the seal stated to

have been affixed on the bottle 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

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 bottle

containing the sample. The copy of the forwarding note has not been

produced and marked in this case. The relevance of the copy of the CRL.A NO. 615 OF 2007

forwarding note is that it contains the specimen impression of the

seal and the name of the person with whom the sample was sent to

the Chemical Examiner's Laboratory.

27. In Ramachandran v. State of Kerala [2020 (21) KLT

793] while dealing with a case in which the 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."

28. 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 CRL.A NO. 615 OF 2007

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".

29. The prosecution has not adduced evidence as to the date

on which the sample was sent for analysis. Ext.P4 would show that

the sample was forwarded to the laboratory by the Judicial First Class

Magistrate-I, Punalur as per letter No.TR 259/2000 dated

21.06.2000. The sample was received in the laboratory on

14.07.2000. In the absence of any contra evidence, this Court has to

infer that the sample was forwarded to the laboratory on 21.06.2000

as is evident from Ext.P4 certificate of chemical analysis. The

prosecution has the bounden duty to convince the court that during

the period from 21.06.2000 to 14.07.2000, the sample remained in a

tamper proof condition. It is the admitted case of the prosecution that

the sample remained in the custody of the property clerk of the court,

the police official who received the sample from the court and the

police official who delivered the same to the laboratory. None of the

witnesses were examined by the prosecution to prove that while in

their custody, the seal was not tampered with. The inevitable effect CRL.A NO. 615 OF 2007

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 has to be proved affirmatively by the

prosecution (vide: State of Rajasthan v. Daulat Ram [AIR 1980

SC 1314].

30. In view of the above mentioned infirmities, no evidentiary

value can be given to Ext.P4 certificate of analysis.

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 have been seized from the possession of the accused (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 CRL.A NO. 615 OF 2007

[2007 (1) KLT 720]).

33. 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 as

discussed above.

34. 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 appellant/accused is

therefore not guilty of the offence punishable under Section 55(a) of

the Abkari Act. She is acquitted of the charge levelled against her.

She is set at liberty.

The Crl.Appeal is allowed as above.

Sd/-

K. BABU, JUDGE bpr