Kerala High Court
Anilkumar 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. 152 OF 2012
AGAINST THE JUDGMENT DATED 24.11.2011 IN S.C.NO.599/2008
OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT -
I, PATHANAMTHITTA
APPELLANT/ACCUSED:
ANILKUMAR
S/O.RAMANKUTTY, AGED 40 YEARS,
AMPALAPARAMBU, KUNNAMTHANAM, MALLAPPALLY,
PATHANAMTHITTA DISTRICT.
BY ADV SRI.AJITH MURALI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
SRI.RENJIT GEORGE, 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.152/2012 2
GOPINATH.P., J.
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Crl.Appeal No.152 of 2012
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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 appellant/accused in S.C.No.599 of 2008
on the file of the Additional District & Sessions Judge (Adhoc) Fast
Track Court - I, Pathanamthitta in a prosecution alleging the
offences under Sections 8(1) and 8(2) of the Abkari Act.
2. The gist of the prosecution case is that the accused was
found in possession of a total quantity of 15 litres of arrack in two
plastic cans on 25.1.2006, at about 5.45 P.M., on a pathway leading
to the Panayampala thodu from Pulinthanam - Mukkur road near
the house of one Baby and thereby committed the offences under
the aforesaid provisions of the Abkari Act.
3. Following the investigation of the case, final report was
filed before the Judicial First Class Magistrate Court, Thiruvalla,
from where it was committed to the Sessions Court for trial and
disposal. It was finally made over to the Additional District &
Sessions Judge (Adhoc) Fast Track Court - I, Pathanamthitta from
where charges were framed against the appellant/accused under
Sections 8(1) and (2) of the Abkari Act. The appellant/accused
pleaded not guilty.
4. The prosecution adduced evidence and examined PWs 1
to 6 and marked Exhibits P1 to P8 and identified material objects
1 and 2.
5. On the closure of the prosecution evidence, the accused
was questioned under Section 313 Cr.P.C. and the appellant/
accused denied all the incriminating materials against him.
Though the appellant/accused was called upon to enter defence
evidence, no defence evidence was let in. On an appreciation of the
evidence of the prosecution, the court came to the conclusion that
the appellant/accused committed the offences alleged and
therefore, convicted him and sentenced to undergo rigorous
imprisonment for four years and to pay a fine of Rs.1,00,000/- and
in default of payment of fine, to undergo a further period of
rigorous imprisonment for a period of one year.
6. The learned counsel for the appellant would submit
that the appeal is liable to be allowed on a short point. She submits
that this is a case where the seizure mahazar does not indicate the
sample of the seal used to seal the material objects and also to seal
the samples taken for the purposes of chemical analysis. She
submits that the perusal of Exhibit P1 mahazar will show that not
even a description of the seal was given in the mahazar. She,
therefore, says that the appellant/accused is entitled to be
acquitted on the short point in the light of the law laid down by 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 25.1.2006 does not describe the nature of the seal
used to seal the material objects and the samples drawn for the
purposes of chemical analysis. Though the mahazar refers to the
nature of the label affixed on the sample, in Bhaskaran's case
(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.599 of 2008
on the file of the Additional District & Sessions Judge (Adhoc) Fast
Track Court - I, Pathanamthitta is set aside and the appellant/
accused is acquitted.
Sd/-
GOPINATH.P.
JUDGE
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