Somarajan vs State Of Kerala
2021 Latest Caselaw 19546 Ker

         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. 2043 OF 2008
  AGAINST THE JUDGMENT DATED 28.7.2008 IN SC 556/2006 OF
       ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM

APPELLANT/ACCUSED:

         SOMARAJAN
         S/O.VELUMBAN,
         VINOD BHAVANAM,PORUVAZHY VILLAGE,
         KUNNATHOOR TALUK, KOLLAM.
         BY ADV SRI.HARIDAS


RESPONDENT/COMPLAINANT:

         STATE OF KERALA
         REPRESENTED BY THE EXCISE RANGE INSPECTOR,
         SASTHAMCOTTA THROUGH THE PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA, ERNAKULAM.
         BY ADV PUBLIC PROSECUTOR



         SRI SANGEETH RAJ (PUBLIC PROSECUTOR)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
17.09.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 Crl.A.No.2043/2008                         2



                             GOPINATH.P., J.
                     --------------------------------------
                         Crl.Appeal No.2043 of 2008
                     ---------------------------------------
                Dated this the 17th day of September, 2021


                               JUDGMENT

This appeal has been filed challenging the conviction and

sentence imposed on the appellant/accused in S.C.No.556 of 2006

on the file of the Additional District & Sessions Judge (Adhoc) II,

Kollam in a prosecution under Sections 8(1) and 8(2) of the Abkari

Act.

2. The gist of the prosecution case is that a preventive

officer of Excise Range, Sasthamcotta, while on patrol duty on

31.7.2003, saw the accused near Mannar road junction holding a

plastic can of ten litres capacity containing about ten liters of illicit

arrack. The appellant/accused was arrested and the samples were

drawn.

3. Following investigation of the matter, a final report was

filed before the Judicial First Class Magistrate Court, Sasthamcotta

from where it was committed to the Court of Session, Kollam for

trial and disposal. The Sessions Court made over the matter to the

Additional District and Sessions Judge (Adhoc) II, Kollam from

where charges were framed against the accused under Section 8 of

the Abkari Act.

4. On the appellant/accused pleading not guilty, the

prosecution examined PWs 1 to 4 and marked Exhibits P1 to P7 and

identified MO1.

5. On closure of the prosecution evidence, the appellant/

accused was questioned under Section 313 Cr.P.C. where he denied

all the incriminating materials appearing against him. The

appellant/accused did not tender any defence evidence. On an

appreciation of the evidence tendered by the prosecution, the trial

court came to the conclusion that the appellant/accused committed

the offences as alleged and therefore, convicted him and sentenced

to undergo rigorous imprisonment for a period of two years and to

pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. It

was further directed that in default of payment of fine, the accused

shall undergo simple imprisonment for a further term of six months.

6. The learned counsel for the appellant would submit that

the appeal is to be allowed on a short point. He submits that this is a

case where Exhibit P1 seizure mahazar does not contain the

specimen of the seal used for sealing the material objects and the

sample drawn for chemical analysis. That apart Exhibit P6

forwarding note also does not contain any sample seal. He submits

that the issue is covered in his favour by the judgment of this Court

in Achuthan v. State of Kerala (ILR 2016(2) Ker 145) and

Bhaskaran K. v. State of Kerala and another (2020 KHC

5296).

7. I have heard the learned Public Prosecutor also.

8. On a perusal of the record, it is seen that Exhibit P1

mahazar dated 31.7.2003 does not describe the nature of the seal

used to seal MO1 and the sample drawn for the purposes of chemical

analysis. The forwarding note (Exhibit P6) also does not contain any

sample seal. Though the mahazar refers to the nature of the label

affixed on the sample, in Bhaskaran K. v. State of Kerala and

another (supra), this Court considering the judgments in

Achuthan v. State of Kerala (supra), Majeedkutty v. Excise

Inspector (2015 (1) KHC 424) and Rajamma v. State of

Kerala (2014 (1) KLT 506) 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. Mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related (See Vijay Pandey v. State of U.P. : AIR 2019 SC 3569)."

In view of the law laid down by this Court in the aforesaid

judgments, I am of the opinion that this appeal is liable to be

allowed. Accordingly, this appeal is allowed and the conviction and

sentence imposed on the appellant/accused in S.C.No.556 of 2006

on the file of the Additional District & Sessions Judge (Adhoc) II,

Kollam will stand set aside and the appellant/accused will stand

acquitted.

Sd/-

GOPINATH.P.

JUDGE csl