Reghu, S/O. Govindan vs State Of Kerala
2021 Latest Caselaw 17842 Ker

             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. 367 OF 2007
  AGAINST THE ORDER/JUDGMENT IN SC 509/2006 OF SPECIAL COURT
               (NDPS ACT CASES), THODUPUZHA, IDUKKI
APPELLANT/ACCUSED:

            REGHU, S/O. GOVINDAN,
            AGED 1 YEARS
            VADAKKEKKARA HOUSE, PAINVAU KARA,, IDUKKI VILLAGE.

            BY ADVS.
            SRI.T.A.SHAJI
            SMT.T.V.NEEMA
            ANWIN JOHN ANTONY



RESPONDENT/COMPAINANT:

            STATE OF KERALA,
            REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF
            KERALA,, ERNAKULAM, REPRESENTING THE S.I.OF POLICE,,
            IDUKKI.

            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.367 of 2007

                                     2

                        K. BABU J.
           ------------------------------------
                   Crl.A.No.367 of 2007
           ------------------------------------
           Dated this the 01st day of September, 2021

                         J U D G M E N T

This appeal is directed against the judgment

dated 07.02.2007, passed by the learned Additional

Sessions Judge/Special Judge for NDPS Act cases,

Thodupuzha, in SC.No.509/2006. By the impugned

judgment, the accused has been convicted of the

offences punishable under Sections 8(2) and 55(g) of

the Kerala Abkari Act.

2. The prosecution case is that on 21.12.2004

at about 05.30 p.m. in the forest area near painavu,

the accused was found engaged in distillation of

arrack. Sub Inspector of police, Idukki detected

the offence.

3. After completion of investigation final

report was submitted against the accused for the

offences punishable under Sections 8(2) and 55(g) Crl.A.No.367 of 2007

of the Abkari Act before the Judicial First Class

Magistrate Court, Idukki. The case was committed to

the Sessions Court, Thodupuzha from where it was

made over to the trial court. On appearance of the

accused charges were framed against him for the

aforesaid offences. The accused pleaded not guilty

and therefore, he came to be tried by the trial

court.

4. The evidence for the prosecution consists of

the oral evidence of PWs 1 to 3 and Exts.P1 to P10

and MOs1 to 16.

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 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. The learned

trial court, after hearing the arguments addressed Crl.A.No.367 of 2007

from both sides, found that the accused was guilty

of the offences under Sections 8(2) and 55(g) of the

Abkari Act and he was convicted thereunder. He has

been sentenced to undergo simple imprisonment for a

term of three years and to pay a fine of

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

No separate sentence was awarded for the offence

under Section 8(2) of the Abkari Act.

6. Heard Sri. Anvin John Antony, the learned

counsel appearing for the appellant/accused and also

Sri. M.C.Ashi, the learned Senior Public Prosecutor

appearing for the respondent.

7. The learned counsel for the accused

contended as follows:

a) The prosecution failed to establish the

identity of the person who was

allegedly possessing the contraband

substance at the scene of occurrence.

     b)      The       exclusive     possession              of     the

             contraband      substances         by     the    accused
 Crl.A.No.367 of 2007



          has     not       been     established         by    the

          prosecution.

    c)    The prosecution has not succeeded in

          establishing             that   the       contraband

          substance         allegedly     seized      from     the

          place    of       occurrence       was    eventually

subjected to analysis at the Chemical

Examiner's laboratory.

8. The learned Public Prosecutor, per contra,

submitted that the prosecution could well establish

the charges against the accused.

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. PW2, the detecting Officer, has given

evidence that on 21.12.2004 on getting reliable

information that the accused was engaged in

distillation of arrack in the forest area near 56

colony, Painavu, the police team led by him Crl.A.No.367 of 2007

proceeded to there. According to PW2, on seeing

the police party the accused ran into the forest. On

further search, PW2 recovered wash, arrack and other

implements used for distillation of arrack. PW2

collected sample in 2 bottles, each containing

375ml, from the arrack seized from the place of

occurrence. He prepared Exhibit.P2 mahazar.

11. PW1, the independent witness, did not

support the prosecution case. PW3, the

investigating officer, arrested the accused on

13.09.2005 from his residence. He completed

investigation and submitted final report.

       12. The           learned           counsel               for       the

accused/appellant          contented        that      the        prosecution

failed to give convincing evidence on the identity

of the accused. Going by the evidence of PW2, the

only witness who supported the prosecution to

establish the incident proper, it is evident that he

had seen the accused from a distance of about 25 to

30 meters from the place of occurrence. According to Crl.A.No.367 of 2007

him, on seeing the police party the accused ran away

from the scene. It is evident that PW2 had only a

fleeting glimpse of the person who ran away from the

scene. In Exhibit.P2 seizure mahazar PW2 had not

narrated any of the features to identify the

accused. PW2 has no case that he had any previous

acquaintance with the accused. Though the accused

was arrested approximately after six months by PW3,

PW2 had no opportunity to see him. Admittedly PW2

identified the accused in the box on 02.01.2007,

after a long lapse of 3 years.

13. The law is settled that the substantive piece of

evidence of identification of an accused is the evidence

given by the witness during trial. Where a witness identifies

an accused, who is not known to him, in the court for the

first time, his evidence is absolutely valueless unless there

has been a previous test identification parade to test his

power of observation {vide: Kanan and others v. State of

Kerala (AIR 1979 SC 1127), Jameel v. State of Crl.A.No.367 of 2007

Maharashtra (AIR 2007 SC 971), Raja v. State by

Inspector of Police (AIR 2020 SC 254), State (Delhi

Administration) v. V.C.Shukla and another (AIR 1980 SC

1382), Mohd.Abdul Hafeez v. State of AP (AIR 1983 SC

367), Mohanlal Gangaram Gehani v. State Of

Maharastra (AIR 1982 SC 839)

14. In the present case since PW2 had no

previous acquaintance with the accused and he had no

opportunity to see the witness after the incident

his identification of the accused in the Court is

not acceptable.

15. The learned counsel for the petitioner

further submitted that the prosecution failed to

establish the actual possession of the contraband

substance by the accused. According to PW2, he had

seen the accused running away from the scene of

occurrence into the forest. He has not given

evidence that the accused was in the actual

possession of the contraband substances allegedly Crl.A.No.367 of 2007

recovered from the place of occurrence.

     16. The           learned          counsel             for         the

appellant/accused          further          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.

17. PW2 has not given evidence as to the nature

of the seal affixed on the bottles containing the

sample. Exhibit.P2 seizure mahazar is also silent

regarding the nature of the seal used by the

detecting officer.

18. In Bhaskaran 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, who has drawn the sample, has to give

evidence as to the nature of the seal affixed on the

bottle containing the sample and the nature of the

seal used shall be mentioned in the seizure mahazar.

This Court further held that the specimen of the Crl.A.No.367 of 2007

seal shall be produced in the court so as to enable

the Court to satisfy the genuineness of the sample

produced.

19. The Junior Superintendent of the court on

22.12.2004 received the samples. Exhibit.P8, copy of

the forwarding note, is silent as to the date on

which the bottles containing the sample were

forwarded to the Chemical Examiner's laboratory.

Ext.P8 also does not contain the name of the

official with whom the samples were forwarded to the

Chemical Examiner's laboratory. The learned

Magistrate who countersigned Exhibit.P8 has not

mentioned the date on which he made his initial.

Exhibit.P10 certificate of chemical analysis would

show that the samples reached the laboratory on

24.12.2004. Exhibit.P10 would further show that a

police constable No. 1535 delivered the bottles

containing sample in the laboratory. So, it has

come out in evidence that the samples remained in

the custody of the Junior superintendent of the Crl.A.No.367 of 2007

court, the Property Clerk of the court and the

police constable who delivered the same in the

chemical examiner's laboratory. None of these

witnesses were examined by the prosecution to

establish that the seals on the samples were not

tampered with while the samples were in their

custody. It was imperative on the part of the

prosecution to examine those witnesses to establish

the tamper-proof despatch of the sample to the

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

[1980 (3) (SCC) 303]. Yet another aspect which

requires consideration is that though the samples

reached the laboratory on 24.12.2004, they were

subjected to analysis only on 15.06.2006,

approximately after one and half years. The

prosecution has not offered any explanation for the

delay in the analysis of the samples.

20. While dealing with a similar fact situation,

this Court in Krishnadas v. State of Kerala (2019

KHC 191), held that the non explanation of the delay Crl.A.No.367 of 2007

in the analysis of the sample is a suspicious

circumstance, the benefit of which must go to the

accused. In the instant case, the delay of more

than one and half years in the analysis of the

sample remains unexplained.

21. 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.

22. 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 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]}.

Crl.A.No.367 of 2007

23. 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 and other circumstances discussed above.

24. 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 offences punishable

under Sections 8(2) and 55(g) of the Abkari Act. He

is acquitted of the charges levelled against him. He

is set at liberty.

This Crl.Appeal is allowed as above.

SD/-

K. BABU, JUDGE rps/