Anandan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943** **CRL.A NO. 911 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 225/2001 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM, KOLLAM** ## **APPELLANT/ACCUSED:** ANANDAN, S/O. DAMODHARAN, PLAVILA THEKKATHIL VEEDU, THODIYOOR VILLAGE,, KARUNAGAPPALLY, KOLLAM DISTRICT. BY ADV B.MOHANLAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.911 of 2007 2 ## **K.BABU, J.** ## **--------------------------------------** ## **Criminal Appeal No.911 of 2007** --------------------------------------Dated this the 12[th] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 17-05-2007, passed by the learned Additional Sessions Judge (Adhoc-1), Kollam in S.C.No.225/2001, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 8(2) of the Abkari Act. 3. The prosecution case is that on 06-04-1998 at 8.00 p.m the accused was found in possession of 1½ litres of arrack at Aramathmadom, Thodiyoor North in Thodiyoor Village. The offence was detected by the Excise Preventive Officer, Excise Range, Karunagappally. 4. After completion of the investigation, the final report was submitted against the accused for the offence punishable under section 8(2) of the Abkari Act Crl.A No.911 of 2007 3 before the Judicial First Class Magistrate Court, Karunagappally. The case was committed to the Sessions Court, Kollam 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 8(2) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him, and therefore, he came to be tried by the trial court for the aforesaid offence. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P8 and MO1. 6. 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 Crl.A No.911 of 2007 4 guilty of offence under section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 1 year and to pay a fine of Rs.1 Lakh. 7. Heard Sri.B.Mohan Lal, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. Crl.A No.911 of 2007 5 ## **The Point** 11. PW1 was the preventive officer of Excise Range, Karunagappally, during the relevant time. The Excise team led by PW1 was on patrol duty on the date of occurrence. When they reached Aramathmadom near the residence of the Ikkaravilayil Venu the accused was found on the western side of the road carrying a plastic bottle. PW1 inspected the bottle in possession of the accused and ascertained that it contained 1½ litres of illicit arrack. He seized the contraband substance in possession of the accused as per Ext.P2 seizure mahazar. PW2, the Excise Official who had accompanied PW1 in the search and seizure, supported the prosecution case. PWs 3 and 6, the independent witnesses, did not support the prosecution case. 12. PW4 registered the crime and PW5 conducted the investigation and submitted the final report. PW7, the property clerk gave evidence that sample was drawn at the court from the contraband substance produced. Crl.A No.911 of 2007 6 13. The learned counsel for the accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the Chemical Examiner. The learned counsel relied on the following circumstances to substantiate his contentions: - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle seized from the possession of the accused. - (b) Exhibit P2, seizure mahazar, is silent regarding the nature and description of the seal affixed on the bottle at the place of occurrence. - (c) No sample was drawn at the scene of occurrence by the detecting officer. - (d) There is no convincing evidence as to who had drawn the sample that was forwarded to the Chemical Examiner’s laboratory. The prosecution failed to establish that the Crl.A No.911 of 2007 7 sample reached the laboratory in a tamperproof condition. 14. The learned counsel for the accused submitted that there is no convincing evidence to establish that the contraband substance allegedly seized from the place of occurrence actually reached the court. The submission of the learned counsel is based on the lack of evidence regarding the seal stated to have been affixed on the bottle containing the contraband substance at the scene of occurrence. PW1, the detecting officer, has not given evidence as to the nature and description of the seal that he affixed on the bottle allegedly seized from the possession of the accused. Exhibit P2, seizure mahazar, does not contain any narration as to the nature and description of the seal used by the detecting officer. The specimen of the seal used by the detecting officer at the scene of occurrence had not been produced before the court. 15. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ 8 Crl.A No.911 of 2007 [2019 KHC 191], this Court held that the detecting officer has to give evidence as to the nature of the seal used and that the seizure mahazar shall contain the description of the seal used. The requirement of the evidence regarding the nature and description of the seal is to enable the court to satisfy the genuineness of the articles/contraband substance produced in the court. In the instant case, the prosecution failed to convince the genuineness of the contraband substance produced before the court due to the non-production of the specimen impression of the seal used by the detecting officer at the scene of occurrence. Though the property clerk was examined as PW7, she had not given evidence as to the tamper-proof production of the contraband substance by the detecting officer before the court. 16. It is the admitted case of the prosecution that sample was not drawn by the detecting officer at the scene of occurrence. PW7, the property clerk of the court gave evidence that the clerk concerned used to Crl.A No.911 of 2007 9 draw sample and send the same to the Chemical Examiner’s laboratory. She has failed to give evidence that she had drawn the sample in the instant case. A question arises as to who had drawn the sample in this case. Exhibit P7 certificate of chemical analysis would show that a sealed bottle containing 150ml of clear and colourless liquid alleged to be arrack was received in the Chemical Examiners’ laboratory. 17. I have gone through the records made available. There is nothing to show that any specific direction was given by the learned Magistrate to draw a specified quantity of the contraband substance as sample and to send the same to the laboratory. The date on which the sample was drawn is also not available. This Court is kept in the dark as to the entire transaction touching drawing of sample and forwarding of the same to the Chemical Examiner’s laboratory. It appears that somebody in the court might have taken sample from a bulk quantity of contraband substance available in the court and Crl.A No.911 of 2007 10 forwarded to the Chemical Examiner’s laboratory. 18. It is pertinent to note that no requisition was made by the Investigating Officer to draw sample, and no forwarding note is seen produced. The specimen impression of the seal stated to have been affixed on the bottle received in the laboratory had not been given to the Chemical Examiner. No contemporaneous document was prepared narrating the details of the sample sent to the Chemical Examiner. 19. The requirement of the forwarding note/requisition is that it contains the details regarding the quantity of sample taken, the specimen impression of the seal, and the name of the person with whom the sample was entrusted to deliver the same to the Chemical Examiner’s laboratory. In the instant case, no such forwarding note was produced and marked. 20. In _**Ramachandran v. State of Kerala**_ [2020 (1) ## KLT 793), this Court held thus: > _“9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper – proof despatch of the sample to the_ Crl.A No.911 of 2007 11 _laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”_ ## 21. In _**Rajamma v. State of Kerala**_ [(2014) 1 KLT ## 506)], this Court held thus: _“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant.”_ ## 22. In the instant case, there is no evidence to convince the court that a specimen impression of the seal had been forwarded to the Chemical Examiner. 23. The prosecution failed to establish the date on which the sample was forwarded to the Chemical Examiner. Exhibit P7, certificate of chemical Crl.A No.911 of 2007 12 analysis, would show that as per letter dated 16-09-1998 of the Judicial First Class Magistrate, Karunagappally, the bottle containing the sample was forwarded. But the sample reached the laboratory only on 19-09-1998. PW7 also deposed that the sample was not handed over to the official concerned on 16-09-1998. Exhibit P7 would show that the sample was produced before the court by the preventive officer by name Steephen. The prosecution has not offered any explanation regarding the custody of the sample during the interval from 16-09-1998 to 19-09-1998. 24. The resultant conclusion is that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was actually subjected to analysis in the Chemical Examiner’s laboratory. Hence, Ext.P7 certificate of chemical analysis cannot be given any evidentiary value. 25. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a Crl.A No.911 of 2007 13 laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 26. 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 contraband substance said to have been seized from the possession of the accused {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 27. 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. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 28. The upshot of the above discussion is that the conviction entered by the court below overlooking these Crl.A No.911 of 2007 14 vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS