Kerala High Court
Vijayan @ Puthoor Vijayan vs State Of Kerala on 10 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 10TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943
CRL.A NO. 18 OF 2014
AGAINST THE JUDGMENT IN SC 623/2012 OF ADDITIONAL DISTRICT
T & SESSIONS COURT - II, PATHANAMTHITTA
APPELLANT/1ST ACCUSED
VIJAYAN @ PUTHOOR VIJAYAN
S/O.KESAVAN, PUTHOOR VEEDU, MADAMON THEKKEKARA
PERUNADU, PATHANAMTHITTA DISTRICT.
BY ADV SRI.V.PHILIP MATHEW
RESPONDENT/COMPLAINANT
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI. M.C. ASHI, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.Appeal No.18 of 2014 2
"C.R"
A.BADHARUDEEN, J.
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Crl.Appeal No.18 of 2014
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Dated this the 10th day of September, 2021
JUDGMENT
This appeal is at the instance of the 1 st accused in S.C
No.623/2012 on the file of the Additional District & Sessions Judge-
II, Pathanamthitta. The State of Kerala represented by the Public
Prosecutor is arrayed as the sole respondent herein. The judgment in
the above case convicting and sentencing the accused for the offence
under Section 8(1) r/w 8(2) of the Kerala Abkari Act is under
challenge herein.
2. The precise allegation of the prosecution is that on
21.12.2004 at about 6.30 p.m the 1st and 2nd accused were found
carrying 5 litre of arrack near Govt. L.P.School, Thekkekara,
Perunadu Village against the prohibitions contained in the Kerala
Abkari Act. Both of them were nabbed redhandedly. Thereafter,
crime registered alleging commission of offence under Section 8(1)
r/w 8(2) of the Kerala Abkari Act. On completing investigation,
charge laid before the Judicial First Class Magistrate Court-I, Ranni.
The learned Magistrate committed the case to the Sessions Court for
trial and disposal. Later this case was made over to Additional
Sessions Judge-II, Pathanamthitta for trial and disposal.
3. The trial court, after framing charge, recorded evidence in
this matter. The evidence consists of PW1 to PW4, Exts.P1 to P8 and
MO1 on the side of the prosecution. Thondy Clerk was examined
as court witness (CW1).
4. Though the accused were given opportunity to adduce
defence evidence after questioning them under Section 313(1)(b) of
Cr.P.C, no defence evidence was adduced.
5. The learned Sessions Judge heard the matter and finally
convicted and sentenced accused No.1 as under:
The accused is sentenced to undergo R1 for 4 years and to pay a fine
of Rs.1 Lakh in default to undergo SI for 3 months for the offence punishable
u/s 8(1) r/w 8(2) of Abkari Act. A2 is acquitted u/s 235 Cr.P.C.
6. The above conviction and sentence are under challenge
before this Court on multiple grounds.
7. Heard the learned counsel for the appellant Advocate Sri
V.Philip Mathews and the learned Public Prosecutor Sri M.C.Ashi.
Two technical grounds were argued by the learned counsel for the
appellant to canvass acquittal. The learned counsel submitted that the
Investigating Officer, who had drawn the sample from the accused,
not given evidence as to the nature of seal affixed on the bottle
containing the sample and the nature of seal used to affix in the
seizure mahazar as well as the forwarding note. Therefore, the
seizure itself is bad in law and as such conviction and sentence are
liable to be set aside. Whereas the learned Public Prosecutor refuted
this argument relying on the evidence of CW1 Thondy Clerk and
PW4, the Investigating Officer.
8. While addressing this argument, I have perused the
evidence of PW4, the Investigating Officer. PW4 generally
supported the prosecution case in tune with the allegations regarding
the arrest of accused 1 and 2 and consequential recovery. However,
his deposition does not contain the relevant aspect as to whether who
had drawn the sample, the nature of seal affixed on the bottle
containing the sample and the nature of the seal affixed in the seizure
mahazar as well as in the forwarding note.
9. It is settled by catena of decisions of this Court that the
Detecting Officer, who had drawn the sample, had to give evidence
as to the nature of the seal affixed on the bottle containing the
sample, nature of the seal used to affix on the seizure mahazar, etc.
Further the Detecting Officer should also produce the specimen of the
seal before the court. Moreover the specimen of the seal shall be
provided under seizure mahazar in the forwarding note so as to
ensure tamper free collection and production of sample before the
court for getting chemical analysis report. That apart, for ensuring
that sample of contraband allegedly seized by the Investigating
Officer from the accused had reached the Chemical Examiner for
analysis, it has to be proved that seal affixed on the sample also is
provided to the Chemical Examiner for comparison. Decisions
reported in [2015 (1) KHC 822], Krishnan H. v. State; [2019 KHC
191], Krishnadas v. State of Kerala; [2016 KHC 175], Achuthan v.
State of Kerala and [2020 KHC 5296], Bhaskaran K. v. State of
Kerala & anr. are relevant on this point.
10. Coming to the second challenge; it is argued by the
learned counsel for the appellant that no specimen seal affixed on the
forwarding note marked as Ext.P6. So also there is no mention in the
chemical analysis report marked as Ext.P8 to prove that specimen
seal was provided to the Chemical Examiner. Further it is submitted
that no specimen seal affixed in the forwarding note. On going
through Exts.P6 and P8, this argument appears to be convincing and
the learned Public Prosecutor also could not point out the specimen
seal in the above documents.
11. In this connection it has to be observed that in a case of
this nature the prosecution could succeed only if it is proved that the
contraband liquor, which was allegedly seized from the accused,
ultimately reached the hands of the Chemical Examiner without
possibility of tampering. Decisions reported in [1980 KHC 873,
State of Rajasthan v. Daulat Ram; 1993(2) KLT 550 (SC), Valsala v.
State of Kerala; 2007 KHC 3404, Sasidharan v. State of Kerala are
given emphasis.
12. While summarising the essential steps required to be
followed to ensure tamper free collection and examination of the
sample of the alleged contraband, the following measures to be
followed:
13. Steps to be followed by the officer collecting the
sample:
(i) Collection of sample from the alleged contraband by the
Officer concerned shall be transparent eschewing possibility of
tampering the sample in any manner;
(ii) While collecting sample, the officer shall describe the
nature of the specimen seal in the mahazar and the specimen seal
shall be affixed on the mahazar, on the sample bottle, bottle
containing the remaining part of contraband and the forwarding note;
(iii) The sample so collected shall be produced before the
jurisdictional Magistrate without any delay and the delay if any, shall
be properly explained;
(iv) Specimen seal affixed on the sample should be produced
before the court along with the contraband for comparison;
(v) The said officer shall depose about compliance of the
above before the court while giving evidence.
14. Steps to be followed by the Thondy Clerk who is
authorised to receive the thondy:
(i) The Thondy Clerk shall verify the specimen seal produced
before the court and to compare the same with a seal affixed in the
mahazar, collected sample and in the forwarding note to ensure that
the seal of the sample is intact and there is no scope for tampering the
same in between its collection and production before the court;
(ii) While forwarding the sample to the laboratory, the Thondy
Clerk shall ensure that specimen sample seal is affixed on the
forwarding note;
(iii) The forwarding letter shall contain the name of the official
who is entrusted to handover the sample to the Chemical Examiner;
(iv) Specimen seal also to be provided to the Chemical
Examiner for verification and to ensure that the specimen seal, so
provided, is tallying with the seal affixed on the sample, to rule out
the possibility of tampering while on transit of the sample;
(v) Thondy Clerk must be examined to prove compliance of
the above, also to prove that he has been in custody of the sample
from the date of receipt of sample till the date of forwarding and also
to prove compliance of item No.(i) to (iv) steps stated hereinabove.
15. Measures to be ensured by the Chemical Examiner:
(i) Chemical Examiner shall ensure production of specimen
seal to verify as to whether the specimen seal provided in the
forwarding note and the sample forwarded are tallying to rule out
tampering of a sample during transit;
(ii) In the chemical analysis report the said fact shall be stated
so as to act upon the same without examining the Chemical Examiner
as provided under Section 293 Cr.P.C.
16. Unless and until the above safety measures are not
ensured, it cannot be said that the sample of the contraband subjected
to chemical examination by the Chemical Examiner is one collected
from the possession of the accused. Any lacuna in this regard is a
reason to disbelieve the recovery and the chemical analysis report.
Consequently, the entire prosecution case would fail.
17. It is argued by the learned counsel for the appellant that
the second accused was acquitted in this case and culpability was
fastened on the first accused alone where the evidence was not fully
free from doubts, as pointed out.
18. Though the learned Public Prosecutor attempted to
justify the prosecution case based on the available evidence, the flaw
in the prosecution evidence as discussed above failed to be justified.
19. Here PW2 an independent witness examined to prove
Ext.P1 and Ext.P2, mahazar and occurrence report admitted the
signature therein. Similarly, PW1, the Detecting Officer supported
the prosecution evidence, but nothing available in this evidence as to
the description of the sample seal or the details of the methodology
for collecting the sample. PW3 initially investigated the crime and
later investigation was completed by PW4. In the evidence of PW4,
nothing stated as to the nature of the seal affixed on the sample.
Further nothing stated as regards to affixture of specimen seal on the
mahazar and the forwarding note.
20. In the case on hand prosecution examined Thondy Clerk
as CW1 to prove the collection of sample by the court in tamper free
manner. However, the evidence is too vague as to material
particulars regarding the nature of specimen seal and comparison of
the same. Therefore, the said evidence is quite insufficient in this
regard.
21. It is true that herein also chemical analysis report with a
positive finding showing presence of prohibited liquor was produced.
In the decision reported in AIR 2019 SC 3569, Vijai Pande v. State
of U.P, the Apex Court held that mere production of a laboratory
report that the sample tested from contraband substance cannot be
conclusive proof by itself and that the sample seized and one tested
are to be corelated.
22. On evaluation of the evidence available, the mandates
necessary to ensure tamper proof collection of sample of the alleged
contraband and its examination without tampering as discussed in
detail, failed to be established by the prosecution without reasonable
doubts. Therefore, the accused/appellant herein is entitled to benefit
of doubt and as such the conviction and sentence imposed by the trial
court in the above circumstances cannot sustain. In view of the
matter, the same are liable to be set aside.
23. In the result, the appeal is allowed. Conviction and
sentence imposed by the trial court against the 1 st accused are set
aside. Consequently, the appellant/1st accused is acquitted for the
offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond
executed by the appellant/1st accused shall stand cancelled. He is set
at liberty forthwith.
Amount, if any, being part of the fine deposited by the
accused/appellant by order of this Court shall be refunded to him in
accordance with the procedure established by law.
Sd/-
(A.BADHARUDEEN, JUDGE)
rtr/
