Kerala High Court
Rajeesh K vs State Of Kerala on 10 October, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 10TH DAY OF OCTOBER 2024 / 18TH ASWINA, 1946
CRL.A NO. 62 OF 2016
CRIME NO.28/2009 OF THALASSERY EXCISE RANGE OFFICE, KANNUR
AGAINST THE ORDER/JUDGMENT DATED IN CP NO.17 OF 2010 OF
JUDICIAL FIRST CLASS MAGISTRATE COURT ,THALASSERY ARISING OUT OF
THE ORDER/JUDGMENT DATED 19.12.2015 IN SC NO.78 OF 2011 OF
ADDITIONAL DISTRICT COURT & SESSIONS COURT - III, THALASSERY
APPELLANT/ACCUSED:
RAJEESH K.
AGED 31 YEARS
S/O.K.K. RAVINDRAN, SHREYAS VEEDU, KOZHUR DESOM,
ERUVATTY AMSOM, THALASSERY TALUK, KANNUR.
BY ADV DR.K.P.PRADEEP
RESPONDENT/STATE:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, OFFICE OF THE
ADVOCATE GENERAL, HIGH COURT OF KERALA, HIGH COURT,
KOCHI - 682 031.
SMT.NIMA JACOB, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
10.10.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A.No. 62 of 2016
2
2024:KER:75397
K.BABU.,J
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Crl.A.No.62 of 2016
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Dated this the 10th day of October, 2024
JUDGMENT
Aggrieved by the judgment dated 19.12.2015,
passed by the Sessions Court, Thalassery in S.C.No.78 of
2011, the accused has preferred this appeal. The appellant
was convicted under Section 55 (a) of the Abkari Act and
sentenced to undergo rigorous imprisonment for a term of
one year and pay a fine of Rs. 1,00,000/-
2. The prosecution case is that, on 23.12.2009 at
about 5.20 pm, the accused was found in possession of 36
bottles, each containing 375 ml of Indian Made Foreign
Liquor at Kathirur, in violation of the provisions of the Abkari
Act.
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3. After completing the investigation, final report
was submitted against the accused for the offence
punishable under Section 55(a) of the Abkari Act before the
jurisdictional Magistrate. The case was committed to the
Sessions Court from where it was made over to the trial
Court. On the appearance of the accused charge was
framed against him for the offence punishable under
Section 55(a) of the Abkari Act. The accused pleaded not
guilty to the charge and therefore, he came to be tried by
the trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 3 and proved
Exts.P1 to P8. C1 was marked as Court Exhibit.
5. After the closure of evidence on behalf of the
prosecution, statement of the accused under Section 313
Cr.P.C. was recorded. He pleaded innocence. The trial Court
heard the matter under Section 232 Cr.P.C. and found
evidence against the accused and hence he was called upon
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to enter on his defence and adduce evidence, if any, he may
have in support thereof. The trial Court, after hearing the
arguments addressed on both sides, found the accused
guilty of the offence punishable under Section 55(a) of the
Abkari Act and convicted him thereunder.
6. Heard Dr.K.P.Pradeep, the learned counsel
appearing for the appellant/accused and Smt.Nima Jacob,
the learned Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellant challenges
the judgment of conviction and sentence on the ground that
the prosecution failed to establish that the contraband
substance seized from the place of occurrence was
subjected to analysis in the Chemical Examiner's
Laboratory.
8. The learned counsel relied on the following
circumstances to substantiate his contentions:-
i) The prosecution failed to establish that the
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specimen of the seal was produced before the
Court when the bottles containing the samples
were produced.
ii) There is no explanation for the custody of the
samples during the period from 24.12.2009 to
19.01.2010.
iii) The various officials who handled the samples
were not examined by the prosecution.
9. The alleged seizure was effected on 23.12.2009.
The Detecting Officer, the Excise Inspector, Thalassery had
drawn samples at the scene of occurrence. He had prepared
Ext.P2 seizure mahazar. Ext.P2 seizure mahazar does not
contain the nature and description of the seal stated to have
been affixed on the bottles containing the samples. There is
nothing to show that the specimen of the seal was produced
before the court at the time when the samples were
produced before the jurisdictional Magistrate.
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10. In Bhaskaran v. State of Kerala (2020 KHC
5296), this Court held that the nature of the seal used by
the detecting officer shall be mentioned in the seizure
mahazar and the specimen of the seal shall be produced in
the Court so as to enable the Court to satisfy the
genuineness of the sample produced in the Court.
11. In Rajamma v. State of Kerala [2014 (1)
KLT 506], this Court held that if the specimen of the seal
affixed on the bottle containing the sample 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, no evidentiary
value can be attached to the Chemical Analysis Report.
12. The samples were received in the Court by the
Junior Superintendent of the Court. It remained in the
custody of the property clerk. Ext.P8 Certificate of Chemical
Analysis shows that the bottles containing the samples were
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delivered in the Laboratory on 19.01.2010. The prosecution
has not given evidence as to the date on which the samples
were forwarded to the Laboratory. Ext.P5, copy of the
forwarding note, shows that the samples were forwarded to
the Laboratory on 24.12.2009. The samples were delivered
in the Laboratory by an Excise Guard by name Sri.Lenin
Edward. The prosecution failed to explain the custody of the
samples during the period from 24.12.2009 to 19.01.2010.
The Excise Guard who delivered the samples in the
Laboratory has not been examined by the prosecution. The
Junior Superintendent of the Court and the Property Clerk
were also not examined. Non-examination of various
officials, who handled the sample during its transit from the
court to the Laboratory is fatal to the prosecution. This view
is fortified by the decision of the Apex Court in State of
Rajasthan v. Daulat Ram [AIR (1980) SC 1314].
14. As the prosecution failed to show that the
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contraband seized from the place of occurrence was
subjected to analysis in the Chemical Examiner's
Laboratory, Ext.P8 Certificate of Chemical Analysis has no
evidentiary value. The resultant conclusion is that the
prosecution has not succeeded in proving the link
connecting the accused with the contraband seized.
15. The upshot of the above discussion is that the
conviction and sentence entered by the Court below
overlooking these vital aspects of the matter cannot,
therefore, be sustained. Therefore, the appellant/accused is
found not guilty of the offence punishable under Section
55(a) of the Abkari Act.
In the result,
(i) The Appeal is allowed ;
(ii) The judgment of conviction and sentence passed
against the accused is set aside ;
(iii) The accused is acquitted of the offence alleged ;
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(iv) He is set at liberty ;
(v) Any amount deposited by the accused as per the
interim orders of the Court shall be disbursed to him as per
law.
Sd/-
K.BABU
JUDGE
bng/10/10/24
