Kerala High Court
Reghunadhan vs State Of Kerala on 17 September, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE GOPINATH P.
FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
CRL.A NO. 2158 OF 2006
AGAINST THE JUDGMENT IN S.C.NO.852/2000 OF ADDL. SESSIONS COURT
(ABKARI), KOTTARAKKARA.
APPELLANTS/ACCUSED:
1 REGHUNADHAN
S/O.GOPALAN, REGHUMANDIRAM VEEDU, KARUVELIL MURI,
EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM.
2 MADHAVAN PILLAI
SON OF KUNJAN PILLAI
REGHUMANDIRAM VEEDU, KARUVELIL MURI,
EZHUKONE VILLAGE, KOTTARAKKARA, KOLLAM.
BY ADVS.
SRI.K.P.SUJESH KUMAR
SRI.K.P.SUJESHKUMAR
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI.RENJIT GEORGE
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.2158/2006 2
GOPINATH.P., J.
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Crl.A.No.2158 of 2006
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Dated this the 17th day of September, 2021
JUDGMENT
This appeal has been filed challenging the conviction and
sentence imposed on the appellants/accused 1 and 2 in S.C.No.852
of 2000 on the file of the Additional Sessions Judge (Abkari),
Kottarakkara in a prosecution under Section 55(g) of the Abkari Act.
2. The gist of the prosecution case is that on 26.8.1998, at
about 9.10 P.M., the appellants/accused 1 and 2 were found in
possession of about 1000 litres of wash and making arrangements
for manufacture of the arrack with implements by the side of a
thodu on the eastern side of Plakkadu Siva temple.
3. Following investigation, a final report was laid before the
Judicial First Class Magistrate Court - I, Kottarakkara. The matter
was committed to the Sessions Court, Kollam. It was made over to
the Assistant Sessions Court, Kottarakkara where a charge was
framed under Section 55(g) of the Abkari Act. The case was again
transferred to the Additional Sessions Judge (Abkari), Kottarakkara.
Since the accused had already entered the plea of not guilty, the
prosecution led evidence by examining PWs 1 to 4, marking Exhibits
P1 to P6 and identifying and marking material objects 1 to 4.
4. On closure of the prosecution evidence, the appellants/
accused were questioned under Section 313 Cr.P.C. and they denied
all the incriminating circumstances against them. No defence
evidence was however adduced.
5. The learned counsel for the appellants would submit that
this appeal is liable to be allowed and appellants/accused 1 and 2
acquitted on a short point and without considering any other issue
raised in the appeal. He submits that this is a case where the seizure
mahazar does not indicate the nature of the seal used in marking the
samples and sealing the contraband items and further on account of
the fact that the forwarding note through which the samples were
forwarded for chemical analysis was not produced or marked in
court.
6. Having perused the records, I am convinced that the
learned counsel for the appellants is right in contending that the
seizure mahazar does not describe or provide a sample of the seal
affixed on the contraband and on the sample taken for the purpose
of chemical examination. Still further, records also show that the
prosecution failed to produce and mark the forwarding note which
is a crucial piece of evidence to link the alleged contraband seized
from the appellants/accused with the chemical analysis report. In
the absence of marking of the forwarding note, there is no evidence
to establish that the alleged contraband seized from the
appellants/accused 1 and 2 was actually the material shown in the
chemical analysis report.
7. This Court considered an identical question in Gireesh
v. State of Kerala [2019 (4) KLT 79], where in paragraphs 14 and
15, held as follows:-
"14. There is another lacuna in the prosecution case. The
copy of the forwarding note prepared by P.W.5 for sending
the samples for chemical analysis was not marked in
evidence. The forwarding note is expected to contain the
specimen impression of the seal used for sealing the bottles
containing the samples. In the absence of the forwarding
note marked in evidence, it cannot be found that the
prosecution has proved beyond reasonable doubt that the
very same samples taken at the spot of the occurrence had
reached the chemical examiner for analysis in a tamper
proof condition (See Prakasan v. State of Kerala (2016 (1)
KLT SN 89 (C.No.96)=2016 (1) KLD 311) and Gopalan v.
State of Kerala(2016 (3) KLT SN 24(C.No.16)=2016(2)KLD
469).
15. When the prosecution relies upon report of chemical
analysis in respect of the samples sent for analysis to prove
the offence alleged against the accused, it can succeed only if
it is shown that the liquid which was examined by the
chemical examiner was the very same sample drawn from
the liquid seized. The prosecution has to prove all the links
starting from the seizure of the samples till the same
reached the hands of the chemical examiner."
In the light of the law laid down by this Court in Gireesh (supra), I
am of the opinion that failure to produce or mark the forwarding
note is a fatal flaw to the prosecution case.
8. That apart, the seizure mahazar does not carry the
impression of the seal or the description of the seal used at the time
of seizure. This Court in Bhaskaran K. v. State of Kerala and
another (2020 KHC 5296) held as follows:-
"21. 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. The nature of the seal used
shall be mentioned in the seizure mahazar. The specimen of
the seal shall be produced in the court. The specimen of the
seal shall be provided in the seizure mahazar and also in the
forwarding note so as to enable the Court to satisfy the
genuineness of the sample produced in the court (See
Achuthan v. State of Kerala: 2016 (1) KLD 391: ILR 2016(2)
Ker 145). A comparison of the specimen of the seal of the
Court provided in the forwarding note with the seal affixed
on the sample bottle will not give any assurance that the
sample of the contraband allegedly seized from the accused
had reached the chemical examiner for analysis in a tamper
proof condition. Such an assurance is possible only when the
specimen of the seal affixed on the sample is provided to the
chemical examiner for comparison (See Majeedkutty v.
Excise Inspector: 2015 (1) KHC 424). When the specimen of
the seal affixed on the sample bottle is not produced before
the Court and forwarded to the chemical examiner for
verification to ensure that the sample seal, so provided, is
tallying with the seal affixed on the sample bottle, no
evidentiary value can be given to the chemical analysis
report and it cannot be found 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 without any tampering (See
Rajamma v. State of Kerala : 2014 (1) KLT 506).
22. xxx xxx xxx
23. It is not the case of the prosecution that there was no
other officer available to conduct the investigation. It is also
not the case of the prosecution that for some other reason
PW5 was compelled to conduct the entire investigation and
to file final report against the accused. It is a case in which,
without any exigencies of the situation, the detecting officer
who registered the case himself conducted the entire
investigation and filed final report. In view of the infirmities
pointed out earlier with regard to the arrest of the accused
and the steps taken for forwarding the sample for analysis,
the "one man show" conducted by PW5 has definitely caused
prejudice to the accused."
[Also see Anandi v. State and another : 2021 KHC
2498]
It must therefore be held that the prosecution has failed to establish
the link between the alleged contraband seized from the
appellant/accused and the chemical analysis report. This is crucial
for successful prosecution in matters like this.
In the result, this appeal is allowed and the conviction and
sentence imposed on the appellants/accused 1 and 2 in S.C.No.852
of 2000 on the file of the Additional Sessions Judge (Abkari),
Kottarakkara is set aside and the appellants/accused 1 and 2 are
acquitted.
Sd/-
GOPINATH.P.
JUDGE
csl
