Kerala High Court
Lyju vs State Of Kerala on 25 October, 2024
CRL.A NO. 847 OF 2008
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2024:KER:79841
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE SOPHY THOMAS
FRIDAY, THE 25TH DAY OF OCTOBER 2024 / 3RD KARTHIKA, 1946
CRL.A NO. 847 OF 2008
AGAINST THE JUDGMENT DATED 03.04.2008 IN SC NO.334 OF 2007
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, ERNAKULAM
APPELLANT/1ST ACCUSED:
LYJU, S/O KUNJAPILLAI,
NELLIMOOLAYIL HOUSE, CHENKARA KARA, KEERAMPARA VILLAGE,
KOTHAMANGALAM.
BY ADV SRI.PEEYUS A.KOTTAM
RESPONDENT/STATE & COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY THE EXCISE INSPECTOR, KOTHAMANGALAM,,
REP. BY PUBLIC PROSECUTOR, DISTRICT COURT,, ERNAKULAM.
(CRIME NO.61/05 OF KOTHAMANGALAM, EXCISE RANGE).
OTHER PRESENT:
PP-SMT.SEENA.C
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.10.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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J U D G M E N T
This appeal is at the instance of the accused in S.C.No. 334 of
2007 on the file of the Additional Sessions Judge (Adhoc II),
Ernakulam, (1st accused in Crime No. 61 of 2005 of
Kothamangalam Excise Range), challenging his conviction and
sentence under Section 8(1) and 8(2) of the Abkari Act, as per
judgment dated 03.04.2008.
2. Prosecution allegation is that, on 19.12.2005 at about
07.15 a.m., the accused and three other persons were found in
possession of 105 liters of illicit arrack, and they were attempting
to transport the same in an autorickshaw. PW1, the Excise
Inspector and party, on patrol duty, detected the offence and
seized the contraband, and arrested the accused and another
person (A2) from the scene of crime. Samples were drawn, and
seizure mahazar was prepared. On production of the accused
along with the articles seized before the Excise Office, Ext.P3
occurrence report was registered. PW4, Circle Inspector of Excise,
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Kothamangalam Excise Range, investigated the case and laid
charge sheet against the appellant and three other persons, under
Section 8(1) and 8(2) of the Abkari Act.
3. On committal, the appellant appeared before the trial court
and charge was framed against him under Sections 8(1) and 8(2)
of the Abkari Act, to which he pleaded not guilty, and claimed to
be tried. PWs 1 to 4 were examined, Exts.P1 to P11 were marked
and MOs 1 and 2 were identified. Ext.X1 was marked as witness
exhibit. On closure of prosecution evidence, the accused was
questioned under Section 313 of Cr.P.C. He denied all the
incriminating circumstances brought on record, and pleaded
innocence. DW1 was examined, and Exts. D1 and D1(a) were
marked from the side of accused.
4. On analyzing the facts and evidence, and on hearing the
rival contentions from either side, the trial court convicted the
accused under Section 8(1) and 8(2) of the Abkari Act and
sentenced him to undergo rigorous imprisonment for one year and
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to pay fine of Rs.1,00,000/-, with a default sentence of simple
imprisonment for 6 months. Aggrieved by the conviction and
sentence, the accused preferred this appeal.
5. Heard learned counsel for the appellant and learned Public
Prosecutor.
6. Learned counsel for the appellant would contend that,
there was no convincing evidence to prove the prosecution case.
The contraband allegedly seized from the possession of the
accused was produced before court belatedly, and so the chances
of tampering cannot be ruled out.
7. PW1, the detecting officer deposed that at 07.15 a.m., on
19.12.2005, while doing patrol duty, he found the appellant taking
a can into an autorickshaw, and on inspection, it was found that
the can contained 35 liters of illicit liquor. Another person also
found along with the appellant, and so both of them were arrested
from the scene of occurrence itself. Two other persons carrying
two plastic cans were found walking towards the autorickshaw,
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and on seeing the excise party, they escaped after leaving the
cans. Those cans, were seen filled with illicit liquor, and so it was
also seized. Seizure Mahazar was prepared, and PW1 affixed his
personal seal in it. Ext.P11 chemical examiner's report shows that
the sample analyzed contained ethyl alcohol. So learned Public
Prosecutor would argue that prosecution proved its case beyond
reasonable doubt, and so the conviction and sentence of the
appellant are only to be upheld.
8. But learned counsel for the appellant would point out that,
Ext.P7 forwarding note does not contain the specimen impression
of the seal with which the sample bottles were sealed by PW1.
Though Ext.P2 seizure mahazar contains the personal seal of PW1,
that seal will not find a place in Ext.P7 forwarding note. So
prosecution could not prove the link evidence, so as to say that
the sample drawn from the contraband seized from the possession
of the appellant, was the sample analyzed before the chemical
examiner's lab.
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9. In Bhaskaran v. State of Kerala and Another [2020
KHC 5296], this Court held that, the forwarding note containing
the specimen impression of the seal, is an important factor to
verify the genuineness of the sample seized at the place of
occurrence. 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. In Rajamma
v. State of Kerala, [2014 (1) KLT 506], this Court held that in
the absence of convincing evidence as to the production of the
specimen impression of the seal, to the Chemical Examiner, no
evidentiary value can be attached to the chemical analysis report.
There is a purpose in affixing the seal in the forwarding note. If
the specimen seal is not affixed in the forwarding note, the
prosecution cannot succeed, because the links starting from the
seizure till it reaches the hands of the analyst could not be proved
without the seal in the forwarding note (reliance placed on
Balachandran v. State of Kerala [2020 (4) KLT 137]).
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10. In the case on hand, there was no specimen impression of
the seal in the forwarding note. There is nothing to show that the
specimen impression of the seal was produced before the court,
for forwarding the same to the chemical examiner's lab. Ext.P11
chemical report says that, the seals on the packets and on the
bottles were intact, and found tallied with the sample seals
provided. But there is nothing to show, that the specimen seal
found in Ext.P2 seizure mahazar was provided to the chemical
examiner's lab, as no such seal is found in the forwarding note.
So Ext.P11 chemical analysis report cannot be relied upon, to say
that the sample analyzed was the sample drawn from the
contraband seized from the appellant, at the place of incident.
11. Learned counsel for the appellant would contend that
though PW4 deposed that the accused and the articles seized were
produced before the learned Magistrate on 19.12.2005, Ext.D1
property register and Ext.D1(a), the relevant entry in that register,
will show that those articles were produced before the court only
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on 23.12.2005, with a delay of 4 days. Though Ext.P6 Remand
Report contains list of enclosures, which includes Thondy list and
the thondy articles, there is nothing to show that the thondy
articles were produced before the learned Magistrate on
19.12.2005 itself. DW1, the thondy clerk of Judicial First Class
Magistrate Court, Kothamangalam, categorically deposed that, the
thondy articles were entered in the register on 23.12.2005. No
evidence is there, to show that the articles were actually produced
before the magistrate on 19.12.2005, and the delay occurred only
in entering it in the property register. If that be the case, then
also, there is no explanation for not entering the articles produced
before court on 19.12.2005, in the register, till 23.12.2005. That
delay stands without any explanation.
12. Ext.P11 chemical analysis report shows that the sample
bottles sent to the lab from Judicial First Class Magistrate court
Kothamangalam as per reference letter dated 31.12.2005 reached
the lab only on 05.01.2006. Ext.P11 shows that the sample bottles
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were forwarded to the lab through excise guard Suresh Babu. He
was not examined to explain the delay of 5 days in reaching the
sample before the chemical examiner's lab, after it was being
handed over to him. So, the delay in reaching the sample before
the lab after forwarding the same from court is not explained by
prosecution. Since that delay is not explained, prosecution failed to
prove tamper proof despatch of the sample to the lab.
13. Without taking into account these material aspects, the
trial court found the appellant guilty under Sections 8(1) and 8(2)
of the Abkari Act. The facts and circumstances, stated above,
creates a genuine doubt as to the genuineness of the sample
examined before the laboratory. Prosecution failed to establish the
link evidence, that the sample drawn at the place of occurrence,
from the contraband seized from the possession of the accused,
was the sample analyzed before the laboratory. So the appellant
is entitled to get the benefit of those doubts.
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14. In the result, this court is inclined to acquit the accused
setting aside his conviction and sentence u/s. 8(1) and 8(2) of the
Abkari Act. His bail bond is cancelled, and he is set at liberty
forthwith.
Accordingly, the appeal stands allowed.
Sd/-
SOPHY THOMAS
JUDGE
RMV
