Rajan vs State Of Kerala
2021 Latest Caselaw 13343 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
                THE HONOURABLE MR.JUSTICE K. BABU
       MONDAY, THE 28TH DAY OF JUNE 2021 / 7TH ASHADHA, 1943
                      CRL.A NO. 1287 OF 2006
  AGAINST THE JUDGMENT IN S.C.NO.217/2005 OF ADDITIONAL SESSIONS
         COURT, FAST TRACK COURT NO.III (ADHOC), MANJERI
APPELLANT/ACCUSED:

          RAJAN
          S/O.RAMAN
          KONNAPPARA VEETTIL,
          KURUMBALAMKODE, NILAMBUR,
          MALAPPURAM DISTRICT.

          BY ADV SRI.BABU S. NAIR


RESPONDENT/STATE:

          STATE OF KERALA
          REPRESENTED BY THE EXCISE INSPECTOR,
          NILAMBUR EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR,
          HIGH COURT OF KERALA,ERNAKULAM, KOCHI-31.


           MAYA.M.N (PUBLIC PROSECUTOR)

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl.A.No.1287/2006                          2



                                 JUDGMENT

Dated this the 28th day of June, 2021

Aggrieved by the judgment dated 31.5.2006, passed by the

Additional Sessions Judge, Fast Track Court No.III (Adhoc),

Manjeri in Sessions Case No.217 of 2005, the accused has

preferred this appeal. The trial court convicted the accused for the

offence punishable under Section 8(2) of the Abkari Act.

2. On 9.8.2003, the appellant/accused was found in

possession of 10 litres of arrack at Kurumbalangode near

Kavalappara. The Assistant Excise Inspector, Excise Range

Office, Nilambur, detected the offence. After completion of

investigation, final report was submitted against the accused by

the Excise Inspector, Excise Range Office, Nilambur for the

offence punishable under Section 8(2) of the Abkari Act before the

Judicial First Class Magistrate Court, Nilambur. The case was

committed to the Sessions Court, Manjeri from where it was made

over to the Additional Sessions Court, Fast Track Court No.III

(Adhoc), Manjeri, for trial and disposal. On appearance of the

accused, charge was framed against him for the 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.

3. The prosecution examined PWs 1 to 5 and proved

Exhibits P1 to P9 and MO1.

4. After closure of the evidence on behalf of the

prosecution, the statement of the accused under Section 313

Cr.P.C. was recorded. 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, that he may have in support

thereof. The trial court, after hearing the arguments addressed

from both sides, convicted the accused and sentenced him to

undergo rigorous imprisonment for a term of one year and to pay

fine of Rs.1,00,000/-.

5. Heard Sri.Nireesh Mathew, the learned counsel for the

appellant, and Sri.M.S.Breez, the learned Senior Public

Prosecutor.

6. The learned counsel for the appellant challenged

the judgment of conviction and sentence on the following

grounds :

(i) There is inordinate delay in forwarding the material

objects, including the sample, to the court.

(ii) The seal stated to have been affixed on the sample is

different from the specimen seal affixed in Exhibit P2

seizure mahazar.

(iii) Exhibit P6, copy of the forwarding note, does not

contain the date on which it was prepared and the

sample was sent to the laboratory.

(iv) The prosecution failed to prove that the sample which

was drawn from the contraband substance allegedly

seized from the accused ultimately reached the hands of

the Analyst.

7. The learned Senior Public Prosecutor submitted that

the prosecution established the charge against the accused.

8. The point that arises for consideration is whether the

conviction entered and the sentence passed against the accused

are sustainable or not.

THE POINT

9. The case of the prosecution is that the accused was

found in possession of 10 litres of illicit arrack on 9.8.2003 at

Kurumbalangode.

10. The first contention of the learned counsel for the

appellant is that there is no satisfactory explanation for the delay

in forwarding the material objects to the court. The material object

was seized and the accused was arrested on 9.8.2003. Exhibit

P5, list of thondi articles, would show that a plastic can containing

approximately 9.80 litres of arrack and a bottle containing 200 ml.

of arrack were produced before the court on 9.8.2003. In Exhibit

P5, there is an endorsement that the material objects including the

sample were returned to the officer who produced it before the

court with instruction to reproduce it on the next working day as

the staff concerned are absent to receive the property. It is further

endorsed in Exhibit P5 that on 12.8.2003, these properties were

again produced before the court. PW5, Sri.P.C.Kurian, Excise

Range Inspector, Nilambur, has given evidence that to the best of

his recollection, between 9.8.2003 and 12.8.2003, the court

remained closed due to holidays, which resulted in the non

production of the properties before the court in time. There is

nothing on record to show the time at which the property seized

was produced before the court. PW2, the Excise Guard, who had

accompanied PW1, the officer who seized the articles, has given

evidence that around 8.30 in the night, the properties were initially

produced before the court. PW5, stated that he received the

property from the court on 9.8.2003 and the same was kept in his

custody and again produced before the court on 12.8.2003. PW5

further stated that no contemporaneous record was prepared at

the time of production of the property before the court on

12.8.2003. PW5 has not given evidence as to through whom the

properties including the sample were sent to the court.

Preparation of a contemporaneous document indicating the

person with whom the sample was sent to the court is normally

expected in a case like this.

11. Exhibit P6, copy of the forwarding note, contains a

specimen seal stated to have been used by the Excise Official for

sealing the sample. Exhibit P2, seizure mahazar, also contains a

specimen seal. It is common ground that only one seal was

affixed on the sample. On a close perusal of the two specimen

seals, one found in Exhibit P6 copy of the forwarding note and the

other found in Exhibit P2 seizure mahazar, there is apparent

difference.

12. According to the prosecution, the properties including

the sample were reproduced on 12.8.2003 before the court. The

sample reached the hands of the analyst on 18.8.2003 as is

evident from Exhibit P9 certificate of chemical analysis. The date

on which the sample was forwarded to the Analyst is not seen in

Exhibit P6. The prosecution has not adduced evidence on this

aspect.

13. The learned Magistrate who affixed his signature on

Exhibit P6 did not mention the date on which he forwarded the

sample to the Analyst. It is seen from Exhibit P5 that on

12.8.2003, the Junior Superintendent of the court had received

the sample. In this circumstance, it was imperative for the

prosecution to examine the officer of the court who received the

sample at the time of reproduction especially in view of the fact

that PW5, the officer who received the sample from the court on

9.8.2003 was not in a position to say the name of the Excise

Official with whom the sample was again sent to the court. The

non examination of the Excise Official who reproduced the sample

before the court and the officer of the court who was entrusted to

keep the sample after reproduction would lead to the conclusion

that the prosecution failed to establish tamper proof handling and

despatch of the sample to the Analyst. Relying on State of

Rajasthan v. Daulat Ram [AIR 1980 Supreme Court 1314], this

Court in Sasidharan v. State of Kerala [2007(1)KHC 275] held

that when sample changed several hands, the prosecution can

succeed only if it is established that the sample which ultimately

reached the hands of the Chemical Examiner was in a tamper

proof condition and that it was the very same sample which was

drawn from the contraband article allegedly seized from the

accused.

14. In the instant case, the prosecution failed to rule out

the possibility of sample being changed or tampered with during

the period in which it remained in the custody of different officials.

15. There is absolutely no link evidence to show that the

sample allegedly taken from the place of occurrence ultimately

reached the hands of the Chemical Analyst in a tamper proof

condition. The conviction recorded and the sentence passed by

the court below overlooking the above mentioned important

aspect cannot sustain.

In the result, the appellant/accused is found not guilty of the

offence punishable under Section 8(2) of the Abkari Act. The

appellant/accused is acquitted. He is set at liberty.

Sd/-

K.BABU, JUDGE csl