P.T. Binu vs State Of Kerala
2021 Latest Caselaw 20807 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
           THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH
    WEDNESDAY, THE 6TH DAY OF OCTOBER 2021 / 14TH ASWINA, 1943
                         CRL.A NO. 211 OF 2014
            AGAINST THE JUDGMENT DATED 01-02-2014 IN
  SC 450/2009 ON THE FILE OF THE ADDITIONAL DISTRICT & SESSIONS
                   JUDGE, NO.II, PATHANAMTHITTA
APPELLANT/1ST ACCUSED:

          P.T. BINU
          AGED 36 YEARS, S/O. PRABHAKARAN,
          RESIDING AT THANNICKAL VEEDU, CHUZHANAKARAYIL,
          EZHUMATTOOR VILLAGE, MALLAPPALLY TALUK,
          PATHANAMTHITTA DISTRICT.
          BY ADVS.
          SRI.V.SETHUNATH
          SRI.S.JUSTUS


RESPONDENT/COMPLAINANT/STATE:

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



          SRI ARAVIND V MATHEW -PUBLIC PROSECUTOR


    THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
06.10.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.Appeal No.211/2014
                                                2




                                           JUDGMENT

This is an appeal filed by the accused in

S.C.No.450/2009 on the file of the Additional District &

Sessions Court-II, Pathanamthitta.

2. The accused/appellant faced trial for offence

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

prosecution case in short is that, on 27-07-2007 at about 3

p.m., the Excise Officials of Mallappally Range was on patrol

duty within their jurisdiction. They were checking vehicle at

Irumpukuzhi and at that time they inspected Tata Sumo

bearing Regn.No.KL-5/G-3580 driven by the 1 st accused at

about 3 p.m. On inspection, they found 10 litres of spirit

kept in the vehicle. The vehicle was owned by the 2 nd

accused and thus both accused committed the offences.

3. On receipt of summons, both accused appeared

before the trial court. After hearing both sides, charge

under Section 55(a) of the Abkari Act was framed against

the accused. The charge was read over and explained to Crl.Appeal No.211/2014

the accused who pleaded not guilty. The prosecution

examined PWs 1 to 8 and marked Exhibits P1 to P16. MO1

was identified. The property Section Clerk of J.F.C.M.,

Thiruvalla, was examined as CW1. After prosecution

evidence, the accused were questioned under Section 313

Cr.P.C. They denied all the incriminating circumstances

brought against them during evidence. No defence

evidence was adduced. Considering the evidence on record,

the court below found the 1st accused/appellant guilty under

Section 55(a) of the Abkari Act and he was convicted for the

said offence. The 2nd accused was found not guilty and he

was acquitted. The 1st accused/appellant was sentenced to

undergo rigorous imprisonment for three years and to pay a

fine of Rs.1,00,000/-, in default, to suffer simple

imprisonment for 15 days as per the impugned judgment.

Challenging the said judgment, the 1st accused has

preferred this appeal.

4. I have heard Sri. V. Sethunath, the learned

counsel appearing for the appellant and Sri. Aravind V.

Mathew, the learned Public Prosecutor. Crl.Appeal No.211/2014

5. The learned counsel for the appellant assailed the

finding of guilt passed against the appellant as illegal and

unsustainable, contending that the prosecution failed to

establish the link between the alleged contraband and the

chemical analysis report inasmuch as the seizure mahazar

does not bear the sample of the seal or description of the

seal used. The learned counsel, in support of his argument,

has relied on a decision of this Court in Bhaskaran K. v.

State of Kerala [2020 KHC 5296] and also another

recent decision of this Court in Crl.Appeal No.552 of 2014

dated 17.09.2021 on identical facts.

6. It is trite that the prosecution has to prove all the

links starting from the seizure of the contraband and

drawing of the sample from it till it reached the hands of the

chemical examiner. In Moothedath Sivadasan v. State

of Kerala (2021 (2) KLT 18), this Court recently has held

that the absence of any link evidence to show that the very

same sample which was drawn from the contraband article

allegedly seized from the possession of the accused,

reached the hands of the chemical examiner, it is unsafe to Crl.Appeal No.211/2014

convict the accused.

7. Exhibit P1 is the seizure mahazar. It does not

contain the sample seal used to seal MO1 and the sample

drawn for the purpose of chemical analysis. The mahazar

also does not contain description of the alleged seal used.

Exhibit P6 property list also does not contain the seal or its

description. In Bhaskaran K. (supra), it was held that the

nature of seal used shall be mentioned in the seizure

mahazar and the specimen of the seal shall be produced in

the court so as to enable the court to satisfy the

genuineness of the sample produced in the court. It was

further held that mere production of a laboratory report that

the sample tested was contraband substance cannot be

conclusive proof by itself and the sample seized and that

tested have to be co-related.

8. In this case also, the nature of seal used has not

been mentioned in Exhibit P1 seizure mahazar. The

specimen of the seal has also not been produced before the

court below. This vital aspect was not taken into

consideration by the court below while appreciating the Crl.Appeal No.211/2014

prosecution evidence. For these reasons, I hold that

conviction and sentence passed by the court below cannot

be sustained.

In the result, the appeal stands allowed. The

conviction and sentence passed on the 1st accused/appellant

by the court below vide impugned judgment is set aside. His

bail bond shall stand cancelled and he shall be set at liberty.

Fine amount, if any, collected shall be refunded.

Appeal is allowed as above.

Sd/-

Dr.KAUSER EDAPPAGATH JUDGE SSK/07/10