Kerala High Court

Satheesh Kumar vs State Of Kerala on 17 June, 2022

        IN THE HIGH COURT OF KERALA AT ERNAKULAM
                         PRESENT
        THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR
 FRIDAY, THE 17TH DAY OF JUNE 2022 / 27TH JYAISHTA, 1944


                  CRL.A NO. 236 OF 2014

  AGAINST THE ORDER/JUDGMENT IN CP 154/2005 OF JUDICIAL
       MAGISTRATE OF FIRST CLASS-III,NEYYATTINKARA
   SC 473/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS
   COURT-VII, THIRUVANANTHAPURAM / IV ADDITIONAL MACT

APPELLANT:

         SATHEESH KUMAR,
         S/O.SOMAN,
         PUTHRAVILAKOM VEEDU,
         THEMBAMUTTOM,
         THALAYAL DESOM,
         ATHIYANNOOR VILLAGE,
         NEYYATTINKARA.

         BY ADV SRI.M.DINESH

RESPONDENT:

         STATE OF KERALA
         REP. BY PUBLIC PROSECUTOR,
         HIGH COURT OF KERALA,
         ERNAKULAM - 682 031.

         BY SMT. MAYA M.N - P.P.


     THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD
ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
                                 2


                   P. G. AJITHKUMAR, J.
          ===========================
              CRL. APPEAL No. 236 OF 2014
          ============================
           Dated this the 17th day of June, 2022

                             JUDGMENT

This is an appeal filed under Section 374(2) of the Code of

Criminal Procedure, 1973. The appellant stands convicted and

sentenced for the commission of an offence under section 8(1)

read with Section 8(2) of the Abkari Act, 1077. He was sentenced

to undergo rigorous imprisonment for a period of three years and

to pay a fine of Rs.1 lakh, with a default sentence of simple

imprisonment for five months. The legality and propriety of the

said judgment of conviction and order of sentence are under

challenge in the appeal.

2. Heard the learned counsel for the appellant and the

learned Public Prosecutor.

3. Learned counsel appearing for the appellant stressed on

3 points to assail the impugned judgment. Although the evidence

relating to seizure of the contraband from the possession of the

appellant is not seriously contested, the learned counsel would

submit that for want of procedural compliance, the prosecution is CRL.A.No.236 OF 2014

bound to fail. However, the trial court without taking into account

those infirmities in the prosecution evidence, convicted and

sentenced the accused which is illegal. He was convicted on the

charge that he was found in possession of 10 litres of arrack at

06.30 p.m on 13.10.1998 at Thalayal in Athiyannoor Village.

4. It is contended that the Mahazar prepared for seizure of

the contraband, Ext.P1 does not contain seal which was affixed on

the seized article and also the sample said to have been prepared.

His contention is that when there is no sample impression of the

seal in the seizure mahazar and no copy of the forwarding note is

produced in court, there is a total lack of evidence with respect to

the proper custody of the samples during the period between its

preparation and examination in the chemical examiner's

laboratory. Adding to that, the learned counsel would submit that

MO1- the can allegedly carried by the accused for transporting the

arrack was empty at the time of production before the Court.

Of course, a reason has been placed before the trial court that by

lapse of time, the can that was entrusted with the Excise Inspector

for safe custody as is seen from Ext.P3 property list, its contents

was emptied and seal torn of in its natural course. It is possible CRL.A.No.236 OF 2014

that due to the long lapse of time, the paper label would get

destroyed and torn of. The arrack in the plastic can could be lost

also due to the passage of time. When that fact is considered in

the light of other infirmities and inconsistencies in the evidence

regarding the production of samples before Court, forwarding of

the same into laboratory and also non-production of the forwarding

note which alone could establish a link between the preparation of

sample and reaching of the same in the chemical examiner's

laboratory, the prosecution is bound to fail, the learned counsel

contends.

5. PW6 is the Clerk in the Court of Judicial Magistrate of the

First Class-III, Neyyattinkara who was examined to prove that the

sample was duly forwarded to the laboratory from the Court. It is

seen from Ext.P9, Chemical Analysis Certificate that sample was

received in the laboratory on 12.11.1998 along with a request from

the Magistrate. Evidence on record, however, is insufficient to

prove when the sample was produced before the Court and

forwarded to the laboratory, and also who was in custody of the

same during the interregnum. In this situation non-production of

the forwarding note assumes much relevance. CRL.A.No.236 OF 2014

6. Ext.P1 seizure mahazar was prepared contemporaneous to

the seizure, at the place of occurrence. It is stated that the

contraband was sealed at the place itself. At the time of

production of MO1 before the Sessions Court, no such seal was

seen on it. Curiously enough, no impression of seal was available

in the seizure mahazar, Ext.P1 also. In nutshell; MO1 was empty

when produced before the Court, no forwarding note was produced

in Court and there is no evidence with respect to the custody of

the sample till it reached the Court. Together with that, lack of

sample seal impression on Ext.P1 creates a serious doubt on the

case of the prosecution.

7. In the said context the view taken by this court in

Moothedath Sivadasan and Another v. State of Kerala

[2021 KHC 3232] is relevant. A single Judge of this Court took

the view that failure to affix sample seal on the seizure mahazar

can in certain cases becomes fatal to the prosecution case. It was

held,

"6. The main contention put forward by the learned counsel

for the appellant is regarding the failure on the part of the prosecution in establishing the link between the contraband article allegedly seized from his possession, with the sample CRL.A.No.236 OF 2014

which was subjected to chemical analysis. It is discernible from Ext.P2 seizure mahazar that immediately upon seizure, two samples were taken from the articles seized, one from one of the bottles having the capacity of 375ml and the other from one among the bottles having the capacity of 180ml. It is also stated that after drawing the sample as mentioned above in two separate bottles, both of them were sealed and submitted before the court. However, the crucial aspect to be noticed in this regard is that Ext.P2 seizure mahazar, a crucial document by which seizure was effected, does not contain the impression of specimen seal claimed to have been affixed on the sample nor it contain the description of the said seal. In Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232], this Court clearly observed that the absence of seal on seizure mahazar or the description thereof in the same is a crucial lacuna on the part of the prosecution.

7. In Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC

3569], it was held that, merely because of the reason that,

the chemical analysis contains the nature of the samples

seized, the same by itself cannot be a ground for conviction

unless it is shown that, the very same sample which was

taken from the articles seized from the possession of the

accused was subjected to chemical analysis. In order to

establish the same, the prosecution has to prove each and CRL.A.No.236 OF 2014

every link right from the seizure of the contraband article till

it reaches at the hands of the Analyst. In this case, Ext.P2

seizure mahazar does not contain the impression of the seal

or the description thereof, and hence it cannot be concluded