Alavikutty s/o Ayamu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** ## **CRL.A NO.1257 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.29/2002 DATED 16.5.2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED:** ALAVIKUTTY S/O.AYAMU,KOOTTILANGADI, PERINTHALMANNA. BY ADVS. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS ## **RESPONDENT/COMPLAINANT:** STATE - EXCISE INSPECTOR, MANANTHAVADY EXCISE RANGE, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI.M.C.ASHI THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.1257/2006 ## _**JUDGMENT**_ _Dated this the 6[th] day of August 2021_ Aggrieved by the judgment dated 16.5.2006 passed by the learned Additional Sessions Judge (Adhoc)II, Kalpetta in Sessions Case No.29 of 2002, the accused has preferred this appeal. The accused was convicted of the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 28.8.1998, at 9.45 A.M., the accused was found in possession of 29 packets of Karnataka made arrack while travelling in a bus bearing registration No.KLL6936 through Mananthavady – Bavali Road. The offence was detected by the Excise Inspector, Mananthavady Excise Range (PW2). 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-II, Mananthavady. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Additional Sessions Court (Adhoc)-II, Kalpetta. On appearance of the accused, charge was framed against the accused for the offence 3 Crl.A.No.1257/2006 punishable under Section 55(a) of the Abkari Act. He pleaded not guilty and therefore, he came to be tried by the Sessions Court. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 7, Exhibits P1 to P7 and MOs 1 to 3 series. 5. After closure of the evidence on behalf of the prosecution, the 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 that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 6. Heard Sri.George Mathew, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the State. 7. The learned counsel for the accused contended as follows : (a) The inordinate delay in the production of the properties 4 Crl.A.No.1257/2006 including the sample before the court has not been satisfactorily explained by the prosecution. 8. The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused at the scene of occurrence reached the hands of the Analyst at the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. The Point: 10. PW2, the Excise Inspector, on 28.8.1998, at 9.45 A.M., searched the bus bearing registration No.KLL-6936 on the Mananthavady-Bavali road. He found the accused in possession of a plastic bag. He found that the plastic bag contained 29 packets of Karnataka made liquor. The contraband substance was seized by PW2 as per Exhibit P1 seizure mahazar. He opened one of the packets and poured the liquid into a 375 ml. bottle as sample and sealed the same. He arrested the accused from the spot and registered Crime No.21 of 1998 alleging offence punishable under Section 55(a) of the Abkari Act against him. 11. PW1, who was in the Excise team, supported the 5 Crl.A.No.1257/2006 prosecution case. PW5 and PW6, the conductor and driver respectively of the bus, did not support the prosecution case. PW3 conducted part of the investigation. PW4 completed investigation and submitted final report. PW7 is the property clerk of the Judicial First Class Magistrate Court-II, Mananthavady. 12. The learned counsel for the accused submitted that the prosecution failed to satisfactorily explain the inordinate delay in the production of the properties including the sample before the court. The seizure was effected on 28.8.1998. PW2 deposed before the court that the properties were produced before the court on 28.8.1998 itself. According to him, the court received the properties only on 14.9.1998. PW7, the property clerk of the court concerned, gave evidence that the properties including the sample were produced before the court on 14.9.1998. PW3, the investigating officer, also would submit that the properties were produced before the court on 14.9.1998. Exhibit P4 would show that the properties including the sample reached the court only on 14.9.1998. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the court. 13. On the question of delay in the production of the 6 Crl.A.No.1257/2006 ## properties, a Division Bench of this Court in _**Ravi v. State of Kerala & another** (2011(3) KHC 121)_ held thus: _“8(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ 14. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 15. The learned counsel for the accused further submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner’s laboratory. 16. The learned counsel relied on the following circumstances to substantiate his contentions : 7 Crl.A.No.1257/2006 - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used. - (c) Exhibit P5 copy of the forwarding note is silent regarding the person with whom the sample was sent to the Chemical Examiner’s laboratory. 17. The oral evidence of PW2, the detecting officer, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. Exhibit P1 seizure mahazar does not contain the nature and description of the seal used by the detecting officer at the scene of occurrence. 18. 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. [vide: _Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019_ 8 Crl.A.No.1257/2006 _KHC 191)]_ 19. Exhibit P5 copy of the forwarding note is silent regarding the person with whom the sample was sent to the Chemical Examiner’s laboratory. Either in Exhibit P5 or in any of the materials placed before the court, there is no mention as to the date on which the sample was handed over to the Excise Official concerned to deliver the same to the Chemical Examiner’s laboratory. The learned Magistrate omitted to mention the date on which he affixed his signature in Exhibit P5. While dealing with a similar fact situation, this Court in _**Kumaran v. State of Kerala [2016 (4) KLT 718]**_ held as follows: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to_ 9 Crl.A.No.1257/2006 _how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 20. In the instant case, Exhibit P7 certificate of chemical analysis would show that the sample was delivered to the Chemical Examiner's laboratory by Sri.Venu, an Excise Guard on 7.11.1998. In Exhibit P5 the space to indicate the name of the official with whom the sample was sent to the Chemical Examiner’s laboratory was left unfilled. This Court is in the dark as to the date on which Sri.Venu, the Excise Guard, received the sample from the court. PW7, the property clerk of the court, has only given evidence that on 14.9.1998, the articles including the sample were received in the court. She has not given evidence as to the custody of the sample after its production before the court on 14.9.1998 and also as to the despatch of the 10 Crl.A.No.1257/2006 sample to the Chemical Examiner’s laboratory. There is no convincing evidence regarding the tamper proof despatch of the sample to the laboratory from the court. 21. It is the admitted case of the prosecution that the sample changed several hands. The sample remained in the custody of the Excise Official who produced it before the court. It remained in the custody of the property clerk. The sample was handled by Sri.Venu, the Excise Official, who delivered the same to the Chemical Examiner’s laboratory. Though the property clerk was examined as PW7, she failed to give evidence as to the custody of the sample after its production before the court. The prosecution, hence, failed to establish that the seal affixed on the sample was not tampered with while in the custody of the above referred officials during different stages. 22. In _**State of Rajasthan v. Daulat Ram** [(1980) 3 SCC 303])_ , the Apex Court held that where the sample changed several hands, it is the duty of the prosecution to establish the tamper proof custody of the same by examining the officials concerned to rule out the possibility of the sample being changed or tampered with during the relevant period. In the instant case, the prosecution has not 11 Crl.A.No.1257/2006 succeeded in establishing that the sample remained in the custody of the officials concerned in a tamper proof condition. 23. In _**Vijay Pandey v. State of U.P.** (AIR 2019 SC 3569)_ , the Apex Court held that 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 corelated. 24. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 25. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Hence, no evidentiary value can be given to Exhibit P7 chemical analysis report. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above and other circumstances mentioned above. 12 Crl.A.No.1257/2006 26. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Criminal Appeal is allowed. Sd/- **K.BABU, JUDGE** csl