Renjith vs The State Of Kerala
2021 Latest Caselaw 19569 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.552 OF 2014
AGAINST THE JUDGMENT DATED 12.6.2014 IN S.C.NO.828/2012 OF
 ADDITIONAL DISTRICT & SESSIONS COURT - II, PATHANAMTHITTA

APPELLANT/ACCUSED:

         RENJITH
         AGED 29 YEARS
         S/O.SUDHARMA RAJAN, RESIDING AT NARIKUZHIYIL
         HOUSE, KODUMUDI, CHITTAR VILLAGE,
         KONNI TALUK, PATHANAMTHITTA DIST.
         BY ADVS.
         SRI.V.SETHUNATH
         SRI.S.JUSTUS


RESPONDENT/COMPLAINANT/STATE:

         THE STATE OF KERALA
         REPRESENTED BY 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.552/2014                             2




                               GOPINATH.P., J.
                         --------------------------------------
                                 Crl.A.No.552 of 2014
                         ---------------------------------------
                    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.828 of 2012

on the file of the Additional District & Sessions Judge - II,

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 on 22.9.2008, at

about 3 A.M., when the Sub Inspector of Chittar Police Station and

party were on patrol duty, they noticed that a bike bearing

registration No.KL-5D/5941 in suspicious circumstances and when

they required the motor cycle to stop, the pillion rider ran away and

escaped. The appellant/accused, who was riding the motor cycle,

was intercepted and the police party found a five litre black can over

the patrol tank of the motor cycle which contained three litres of

illicit arrack.

3. Following the investigation, a final report was filed

before the Judicial First Class Magistrate Court-I, Ranny, from

where it was committed to the Sessions Court, Pathanamthitta.

Again it was transferred to the Additional District & Sessions

Court -II, Pathanamthitta for trial and disposal. Charges were

framed against the appellant/accused under Sections 8(1) and 8(2)

of the Abkari Act. The appellant/accused pleaded not guilty. Trial

was conducted.

4. The prosecution examined PWs 1 and 2 and CW1 and

marked Exhibits P1 to P7, Exhibit C1 and identified MO1.

5. Following the closure of prosecution evidence, the

appellant/accused was questioned under Section 313 Cr.P.C. The

appellant/accused denied the incriminating materials against him

and alleged that he was falsely implicated in the crime on account of

the fact that his mother is a Panchayath member and purely out of

political enmity. No defence evidence was let in. On an appreciation

of the evidence of the prosecution, the trial court came to the

conclusion that the appellant had committed the offence and

convicted the appellant/accused to undergo rigorous imprisonment

for two years and to pay a fine of Rs.1,00,000/- and in default of

payment of fine, to undergo simple imprisonment for a period of

fifteen days.

6. Sri.V.Sethunath, the learned counsel appearing for the

appellant/accused, would contend that the appeal is liable to be

allowed on a short point. He submits that this is a case where the

prosecution has failed to establish a link between the alleged

contraband and the chemical analysis report inasmuch as the

seizure mahazar does not bear the sample of the seal or description

of the seal used. He submits that the issue is covered in his favour

by the judgments 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 22.9.2008 does not describe the nature of the seal

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

analysis. Though the mahazar refers to the nature of the label

affixed on the samples, in Bhaskaran's case (supra), this Court

considering the judgment 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.828 of 2012

on the file of the Additional District & Sessions Judge - II,

Pathanamthitta is set aside. The amount deposited pursuant to the

order dated 30.10.2014 in Crl.M.A.No.4584 of 2014 shall be

refunded on proper application.

Sd/-

GOPINATH.P.

JUDGE csl