Kerala High Court
Stephen vs State Of Kerala on 1 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 1ST DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943
CRL.A NO. 1157 OF 2007
AGAINST THE ORDER/JUDGMENT IN SC 1190/2001 OF ADDITIONAL S.C.-
TRIAL OF ABKARI ACT CASES,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
STEPHEN
AGED 1 YEARS
S/O. VARGHESE, KATTUKULAM THEKKEEKRA PUTHEN VEEDU,,
ERINJIMAMPALLY, MULALIVILA, VELLARADA, DESOM,
VELLARADA VILLAGE, NEYYATTINKARA.
BY ADV SUMAN CHAKRAVARTHY
RESPONDENT/COMPLAINANT AND STATE:
STATE OF KERALA
REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA,, ERNAKULAM.
BY ADV M.C. ASHI PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.1157 of 2007
2
K. BABU J.
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Crl.A.No.1157 of 2007
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Dated this the 1st day of September, 2021
J U D G M E N T
Aggrieved by the judgment dated 28.05.2007,
passed by the learned Additional Sessions Judge for
the Trial of Abkari Act cases, Neyyattinkara, in
SC.No.1190/2001, the accused has preferred this
appeal.
2. The trial court convicted the accused for
the offence punishable under Section 58 of the Kerala
Abkari Act.
3. The prosecution case is that on 13.02.2000 at
about 04.00 p.m., the accused was found in possession
of 7 liters of illicit arrack in a 10 litre can and a
glass tumbler at Vellarada in Vellarada village.
4. After completion of investigation, final
report was submitted against the accused for the
offence punishable under Section 58 of the Abkari
Crl.A.No.1157 of 2007
Act before the Judicial First Class Magistrate III,
Neyyattinkara. The case was committed to the
Sessions Court, Thiruvananthapuram from where it was
made over to the trial court. On appearance of the
accused charge was framed against him for the
aforesaid offence. The accused pleaded not guilty
and therefore, he came to be tried by the trial
court.
5. The evidence of prosecution consists of the
oral evidence of PWs 1 to 5, Exts.P1 to P8 and MOs
1 and 2.
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
innocence. The trial court heard the matter under
Section 232 Cr.P.C. and found that there was
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. On the side
of the defence DWs 1 and 2 were examined. The
Crl.A.No.1157 of 2007
learned trial court, after hearing the arguments
addressed from both sides, found the accused guilty
of offence under Section 58 of the Abkari Act and he
was convicted thereunder. The accused was sentenced
to undergo rigorous imprisonment for a term of two
years and to pay a fine of Rs.1,00,000/-.
7. Heard Sri. Suman Chakravarthy, the learned
counsel appearing for the appellant/accused and also
Sri. M.C.Ashi, the learned Public Prosecutor
appearing for the State.
8. The learned counsel for the
appellant/accused contended that the prosecution
failed to establish that the contraband substance
allegedly recovered from the place of occurrence
eventually reached the Chemical Examiner's
laboratory.
9. The learned Public Prosecutor, per contra,
submitted that the prosecution has succeeded in
establishing the charge against the accused.
10. The only point that arises for consideration
Crl.A.No.1157 of 2007
is whether the conviction entered and the sentence
passed against the accused are sustainable or not.
THE POINT
11. PW5, the detecting officer gave evidence
that on 13.02.2000, while on patrol duty, on getting
reliable information that the accused was possessing
illicit arrack he proceeded to the place of
occurrence and found that the accused was carrying a
plastic can and a glass tumbler. PW5 verified the
can and found that it contained 7 liters of illicit
arrack. He seized the contraband substance from the
possession of the accused and arrested the accused.
PW5 prepared Ext.P1 seizure mahazar.
12. PW3, the Police Constable, who had
accompanied PW5 in the search and seizure, supported
the case of the prosecution. PW1, an independent
witness, supported the prosecution case. PW2,
another independent witness, did not supported the
prosecution. PW4, the Property Clerk of the
Magistrate court concerned, has given evidence that
Crl.A.No.1157 of 2007
he received the properties before the court after
verifying the seal affixed on them. She further
stated that on 14.20.2000 she had drawn 180ml of
liquid from MO1 can into an empty bottle and affixed
the metal seal of the court and sent to the
laboratory on 22.02.2000 through a Police Constable
No. 6722, along with Ext.P3 forwarding note,
countersigned by the learned Magistrate.
13. The learned counsel for the
appellant/accused contended that the prosecution has
not established that the contraband substance
allegedly recovered from the place of occurrence
eventually reached the Chemical Examiner's
laboratory. The learned counsel for the accused
relied on the following circumstances to
substantiate his contentions:
(a) No sample was drawn by the detecting
officer at the scene of occurrence.
(b) No specimen impression of the seal stated
to have been used by the detecting
Crl.A.No.1157 of 2007
officer was produced before the court.
(c) The drawing of the sample by the Property
Clerk has no sanction of law.
14. PW5, the detecting officer has given
evidence that he had affixed seal on the can
containing the contraband substance recovered from
the possession of the accused. Exhibit.P1 seizure
mahazar, the contemporaneous document evidencing
seizure, does not contain any mention as to the act
of sealing by the detecting officer at the scene of
occurrence. Exhibit.P1, sezure mahazar, is silent
regarding the nature and description of the seal
stated to have been affixed by the detecting
officer. The detecting officer has not given
evidence as to the nature of the seal used by him at
the scene of occurrence. In Bhaskaran k.v. State of
Kerala and another (2020 KHC 5296) and in
Krishnadas v. State of Kerala (2019 KHC 191) this
Court held that the detecting officer has to give
evidence as to the nature of the seal affixed and
Crl.A.No.1157 of 2007
the seizure mahazar shall contain the description of
the seal used. The specimen of the seal used by the
detecting officer is required to be produced before
the court to enable the court to satisfy the
genuineness of the contraband substance produced
before the court.
15. PW4 gave evidence that she had verified the
contraband substance and ascertained that the seal
was intact. PW5 gave evidence that he had forwarded
the specimen of the seal, used by him at the scene
of occurrence, to the court.
16. I have carefully gone through the materials
placed before the court. There is nothing to show
that the specimen of the seal stated to have been
used by the detecting officer was either produced or
marked before the court. In the absence of any
materials to show that the specimen impression of
the seal used by the detecting officer was produced
before the court, the genuineness of the contraband
substance produced is doubtful.
Crl.A.No.1157 of 2007
17. PW4, the Property Clerk of the court, gave
evidence that she had drawn the sample after
breaking the seal on MO1 can. She gave evidence
that she collected sample as per the directions of
the learned Magistrate. It is pertinent to note
that no contemporaneous document had been prepared
to show that the learned Magistrate had given any
direction to take a specified quantity of the
contraband substance as sample and forward the same
to the laboratory. While giving evidence, PW4
further clarified that she was not sure as to
whether the bottle used for collecting the sample
was sterilized or not.
18. Exhibit.P3, copy of the forwarding note,
contains no specimen impression of the seal used.
Exhibit.P2 is a copy of the covering letter by which
the bottle containing the sample was forwarded to
the Chemical Examiner's laboratory. The impression
of the seal affixed against the space for mentioning
the specimen seal in Exhibit P2, is not legible.
Crl.A.No.1157 of 2007
The impression contained in Exhibit.P2 cannot be
used for verifying the genuineness of the sample.
Exhibit.P6 would further show that, by letter dated
22.02.2000 of the Judicial First Class Magistrate
III, Neyyatinakara, one sealed bottle containing
180ml of clear and colourless liquid alleged to be
country liquor was received in the laboratory on
22.02.2000 itself. The date of Ext.P2 letter is
seen corrected as 22.02.2000 instead of 29.02.2000.
This also creates some suspicion as to the
genuineness of the sample that was tested in the
Chemical Examiner's laboratory.
19. The prosecution failed to establish that the
specimen impression had been provided to the
Chemical Examiner for comparison. While dealing
with a similar circumstance, in Rajamma v. State of
Kerala [2014 (1) KLT 506], this Court held that in
the absence of evidence as to the production of
specimen impression of the seal to the Chemical
Examiner for comparison, no sanctity can be attached
Crl.A.No.1157 of 2007
to the report of the Chemical Examiner. The
resultant conclusion is that no evidentiary value
can be even given to Ext.P6 certificate of chemical
analysis.
20. In Vijay Pandey v. State of U.P (AIR
2019 SC 3569) the Apex Court held that mere
production of a laboratory report that the sample
tested was the contraband substance cannot be
conclusive proof by itself and that the sample
seized and that tested have to be co-related.
21. 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],
Sasidharan v. State of Kerala [2007 (1) KHC 275]}.
22. In the instant case, the prosecution was
Crl.A.No.1157 of 2007
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.
23. There is yet another reason to grant
benefit of doubt to the accused. The defence
challenged the alleged arrest of the accused. The
arrest memo has not been produced in this case.
Prosecution has not offered any explanation as to
the non production of the arrest memo. Prosecution
has no case that arrest memo was omitted to be
produced before the court. PW5 has not given
evidence that he had prepared arrest memo on
arresting the accused. He has also not given any
evidence that intimation regarding the arrest was
given to any near relative or friend of the accused.
In the absence of any arrest memo or arrest
intimation brought out in evidence, the alleged
arrest is doubtful.
Crl.A.No.1157 of 2007
24. While dealing with a similar fact situation,
this Court, in Ramankutty v. Excise Inspector [2013
(3) KHC 308], held thus:
"It is pertinent to note that the 'arrest
memo', a crucial document which is required to
be prepared contemporaneously at the time of
arrest to show the genuineness of arrest, is
seen not produced before the trail court.
Prosecution has no case that though the arrest
memo had been prepared at the time of the
arrest and seizure, it could not be produced
before the trial court. So it can be safely
concluded that it was not prepared at the time
of alleged arrest. If the arrest is not proved
beyond reasonable doubt, the entire case set up
by the prosecution will fall to ground".
25. Ramankutty v. Excise Inspector(supra) was
followed by this court in Bhaskaran.k v. State of
Kerala and another[supra]. The Court below has
ignored these vital aspects while entering into the
conviction. Hence, the accused is entitled to
benefit of doubt. 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
Crl.A.No.1157 of 2007
appellant/accused is therefore not guilty of the
offence punishable under Section 58 of the Abkari
Act. He is acquitted of the charge levelled against
him. He is set at liberty.
This Crl.Appeal is allowed as above.
Sd/-
K. BABU,
JUDGE
rps/
