Kerala High Court

K.R.Babu vs State Of Kerala on 17 September, 2021

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                PRESENT
               THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
    FRIDAY, THE 17TH DAY OF SEPTEMBER 2021 / 26TH BHADRA, 1943
                         CRL.A NO. 17 OF 2014
 AGAINST THE ORDER/JUDGMENT IN SC 662/2012 OF ADDITIONAL DISTRICT
   COURT & SESSIONS COURT - II, PATHANAMTHITTA, PATHANAMTHITTA
APPELLANT/ACCUSED

             K.R.BABU
             AGED 49 YEARS
             S/O.RAMAKRISHNA PILLAI,RESIDING AT KALAKKATTU
             HOUSE,PUTHUSSERIMALA,RANNI VILLAGE,RANNI
             TALUK,PATHANAMTHITTA DISTRICT.
             BY ADVS.
             SRI.V.SETHUNATH
             SRI.S.JUSTUS


RESPONDENT/COMPLAINANT/STATE:

             STATE OF KERALA
             REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF
             KERALA,ERNAKULAM.

             SRI.ARAVIND MATHEW (PUBLIC PROSECUTOR)
     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
17.09.2021,     THE   COURT   ON   THE    SAME   DAY   DELIVERED   THE
FOLLOWING:
 Crl.Appeal No.17 of 2014
                                         2

                   A. BADHARUDEEN, J.
        ========================================
                              Crl.Appeal No.17 of 2014
        ========================================
              Dated this the 17th day of September, 2021

                                 JUDGMENT

The accused in SC No.662/2012 (2 nd accused in OR

No.68/2003 of Ranni Excise range) on the file of the Additional

District & Sessions Judge No.II, Pathanamthitta has preferred this

appeal challenging the conviction and sentence imposed against

him as per judgment dated 2.1.2014 in the above case. The State

of Kerala is the respondent herein.

2. I would like to refer the parties in this appeal as

'prosecution' and 'accused' hereinafter, for easy reference.

3. The brief facts of the case:

The prosecution allegation is that on 1.10.2013 as directed by the

Deputy Excise Commissioner Southern Range, Excise officials of

Kollam conducted raid in TS No.18/03-04 of Ranny Range and

seized arrack from the toddy shop where license was given in

favour of the 2nd accused. Thereafter, contraband was recovered

and crime alleging commission of offences under Section 8 (1) Crl.Appeal No.17 of 2014

r/w 8 (2) of Abkari Act was registered and investigated.

Thereafter, charge laid against Accused Nos.1 and 2 before the

Judicial First Class Magistrate Court, Ranny. Thereafter, case

against the 2nd accused was committed to the court of Sessions

after refiling the case of the 1st accused as his presence could not

be secured, during committal stage.

4. The learned Sessions Judge made over the case to the

Additional District & Sessions Judge II, Pathanamthitta for trial

and disposal.

5. The Trial court framed charge and went on trial. During

trial, PW1 to PW5 and CW1 were examined, and marked Ext.P1 to

P12, C1 and Mo1 to MO3 were marked on the side of the

prosecution. Thereafter, the trial court examined the accused

under Section 313(1) (b) of Cr.P.C and recorded the explanation

of the accused regarding the incriminating circumstances found

against him in evidence. Though opportunity was given to the

accused to adduce defence evidence, no defence evidence was

adduced in this case.

6. The trial court after hearing bothsides and appraising the

evidence available, convicted and sentenced the accused as under:

The accused is sentenced to undergo R1 for 5 years for the Crl.Appeal No.17 of 2014

offence punishable u/s 8 (1) r/w 8 (2) of Abkari Act and also sentenced to pay a fine of Rs.2 Lakhs in default to undergo SI for 6 months. The accused is also gound guilty of the offence punishable u/s 56(b) of the Abkari Act.

7. The accused, who is aggrieved by the above conviction and

sentence, is before this Court by filing this appeal.

8. Heard Sri.V.Sethunath, learned Counsel appearing for

the appellant/accused and Sri.Aravind Mathew, learned Public

Prosecutor. Perused the evidence available.

9. It is submitted by the learned Counsel for the

appellant/accused that in this case, the case of the 1 st accused was

split up and refiled. According to the learned Counsel, in a case of

this nature, conviction of the 2nd accused, who is the licencee is

possible only if the 1st accused got convicted. In this connection,

learned Counsel pointed out the decision reported in [2010 (2)

KLT 783], Mohanan P.M. Vs. State of Kerala, wherein it was

held that, when the first part of the prosecution case, especially

against the 1st accused, was repelled by the trial court, the trial court

could not be justified in convicting the 2 nd accused. A Similar case

was considered in the above decision. However, the ratio of the

decision has no application in the present case, wherein the case of Crl.Appeal No.17 of 2014

st the 1 accused is yet to be tried.

10. Another point argued to unsustain the verdict of the trial

court is regarding the manner of collection of sample. It is pointed

out that tamper free collection of samples and forwarding the same

to the chemical examiner not at all established in this case. In this

connection, evidence of PW3 - Detecting Officer, was given

emphasis. It is submitted by the learned Counsel for the

accused/appellant that PW3 had not given evidence as to the nature

of seal used on the bottle containing the sample and the nature of

the specifimen seal used to affix on the seizure mahazar as well as in

the forwarding note.

11. But the learned Public Prosecutor attempted to justify tamper

free collection of sample and obtaining chemical analysis report in

a fair manner, ruling out the possibility of tempering. In order to

allay the dispute in this regard, perusal of evidence of PW3 and

CW1 are ncessary. On perusing the evidence given by PW3 the

submission of the learned Counsel for the accused appears to be

convincing. On perusing Ext.P1 recovery Mahazar, no sample seal

affixed in the mahazar. Similarly, no seal affixed in the forwarding

note marked as Ext.P10 also.

12. It is true that in the chemical analysis report marked as Crl.Appeal No.17 of 2014

Ext.P6, it was stated that the seal on the bottle was intact and found

tallied with sample seal provided. However, the nature of the

sample seal could not be gathered either from Ext.P1 or from the

records available.

13. In this case, PW2, an independent witness to the mahazar

for the recovery and search, denied his signature in Ext.P1 recovery

mahazar. However, he admitted his signature in Ext.P2 search list

and Ext.P3 arrest memo. He did not support the prosecution in the

matter of search and recovery and his evidence that he put his

signature in Ext.P2 and Ext.P3 on the road while he was going back

to his house after his job. PW4 and 5 are the Investigating officers

and they supported the prosecution.

14. It is true that prosecution examined CW1 - thondi clerk to

prove the custody of the contraband, after production before the

court. But the evidence of CW1 is too vague and the same does not

show the necessary details and the same is confined to receipt of

MO's on 3.10.2003.

15. Though the learned Public Prosecutor argued in support of

the conviction and sentence imposed by the trial court, he failed to

justify the anomalies in the matter of collection of sample, non-

disclosure of the nature of specimen seal and absence of specimen Crl.Appeal No.17 of 2014

seal in the forwarding note as well as in the recovery mahazar.

16. 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.

17. Coming to the second challenge; it is argued by the

learned counsel for the accused/appellant that no specimen seal Crl.Appeal No.17 of 2014

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,

as already pointed out. On going through Exts.P6 and P8, this

argument appears to be convincing and the learned Public

Prosecutor also could not show the specimen seal in the above

documents.

18. 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.

19. 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:

20. Steps to be followed by the officer collecting the Crl.Appeal No.17 of 2014

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.

21. 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 Crl.Appeal No.17 of 2014

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.

22. Measures to be ensured by the Chemical

Examiner:

(i) Chemical Examiner shall ensure production of specimen Crl.Appeal No.17 of 2014

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.

23. 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.

24. 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.

25. On evaluation of the evidence available, the mandates Crl.Appeal No.17 of 2014

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.

26. In the result, the appeal is allowed. Conviction and

sentence imposed by the trial court against the accused are set

aside. Consequently, the appellant/accused is acquitted for the

offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond