Anil Kumar @ Gandhi v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **CRL.A NO. 1915 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1142/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** ANILKUMAR @ GANDHI, AGED 30 YEARS, S/O.GANGADHARAN, KIDANGIL VEEDU,, ANCHUTHENGU, KADAKKAVOOR VILLAGE,, THIRUVANANTHAPURAM. BY ADVS. SRI.K.J.SAJI ISAAC DR.ELIZABETH VARKEY SRI.V.JOHN SEBASTIAN RALPH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1915 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.1915 of 2006** --------------------------------------Dated this the 13[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12-09-2006, passed by the learned Additional Sessions Judge (Fast Track Court-I), Thiruvananathapuram in S.C No.1142/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) read with 8(2) of the Abkari Act. 3. The prosecution case is that on 08-06-1997 at 8.30 a.m., the accused was found in possession of 6 litres of illicit arrack in MO1 white can having a capacity of 10 litres for the purpose of sale and MO2 glass tumbler at Pachapullu near Anchuthengu Muslim Jamaath in Kadakkavoor village. 4. 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 3 Crl.A No.1915 of 2006 Magistrate Court, Varkkala. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court (Fast Track Court-I), Thiruvananthapuram. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) read with 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 trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 3 and proved Exts.P1 to P5 and MO1 to MO2. 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 arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) read with 8(2) of Crl.A No.1915 of 2006 4 the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 2 ½ years and to pay fine of Rs.1 Lakh. 7. Heard Sri.K.J.Saji Isaac, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the articles said to have been seized 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. ## **The Point** 11. PW2, the then Sub Inspector of Police, Anchuthengu Police Station on 08-06-1997 detected the offence. PW1 has given evidence Crl.A No.1915 of 2006 5 that on the date of occurrence at 8.15 a.m, he reached the place of occurrence, on getting reliable information that the accused was engaged in the sale of arrack and found him carrying a can having a capacity of 10 litres. PW2 ascertained that the liquid contained in the can was illicit arrack intended to sale. 12. PW1, an independent witness, examined to prove the incident proper, did not support the prosecution case. 13. PW3, an Assistant Sub Inspector of Police, who had accompanied PW2 supported the prosecution case. 14. PW2 seized the contraband substance from the possession of the accused as per Ext.P1 seizure mahazar. PWs 2 and 3 have given evidence that at the time of seizure a can containing illicit liquor was sealed. PW2 produced the contraband substance recovered from the place of occurrence before the Magistrate Court concerned. 15. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the very same contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s laboratory. Crl.A No.1915 of 2006 6 The learned counsel for the accused relied on the following circumstances to substantiate his contentions. - (a) The case of the detecting officer and other official witness, who had accompanied him, that they had sealed MO1 can at the place of occurrence, is not acceptable. - (b) PW2, the detecting officer and the other official witness (PW3) have not given evidence as to the nature and description of the seal affixed on MO1 can. - (c) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the affixture of seal on MO1. - (d) There is no evidence to show as to who had drawn the sample, which was sent to the Chemical Examiner’s laboratory. - (e) The copy of the forwarding note is silent regarding the specimen of the seal affixed on the bottle containing the sample and the person with whom the sample was sent to the Chemical Examiner’s laboratory. Crl.A No.1915 of 2006 7 16. PW2, the detecting officer and PW3 the police official, who had accompanied PW2, have given evidence that the can was sealed at the place of occurrence. It is pertinent to note that Ext.P1 seizure mahazar is silent regarding the act of sealing of MO1 can as pleaded by the prosecution. PWs 2 and 3 have not given evidence as to the nature and description of the seal allegedly affixed on MO1 can. 17. The learned counsel for the appellant/accused submitted that if PW2 had affixed seal as stated by him on MO1 can the same would have found a place in Ext.P1 mahazar, the contemporaneous document evidencing seizure. In Ext.P1 seizure mahazar absolutely there is no mention of the act of sealing by the detecting officer. There is no mention of the nature and description of the seal, allegedly used, in Ext.P1 seizure mahazar. Hence I have no hesitation to hold that the oral evidence of PWs 2 and 3 to the effect that MO1 can was sealed at the place of occurrence, is not acceptable. 18. PW2 has given evidence that he had sent a requisition to the Judicial Magistrate of First Class, Varkkala, to take sample and to forward the same to the Chemical Examiner’s laboratory for analysis. 8 Crl.A No.1915 of 2006 Ext.P3 is the property list produced by PW2 before the court. Exhibit P3 would show that MO1 can, containing 6 litres of illicit arrack, was produced before the court on 09-06-1997. Exhibit P3 would further show a submission before the learned Magistrate by a staff concerned stating that sample was taken. It is pertinent to note that no evidence has come out showing that the learned Magistrate had given any direction to any of the staff concerned to take specified measure of sample from the bulk quantity. Some relevant questions arise. Who took the samples and on which date and how much quantity? This Court is kept in the dark as to these questions. 19. Ext.P5 certificate of chemical analysis shows that on 18-06-1997 a sealed bottle containing 180 ml of clear and colourless liquid alleged to be illicit arrack reached the Chemical Examiner's laboratory as per letter No.T.115/97 of the Judicial First Class Magistrate, Varkala. What is discernible is that on some day between 09-06-1997 and 18-06-1997 somebody might have taken the sample from some bulk quantity in court and might have despatched the same under the covering letter of the learned Magistrate to the Crl.A No.1915 of 2006 9 ## Chemical Examiner's laboratory. 20. Exhibit P4, the copy of the forwarding note, is silent regarding the specimen seal affixed on the bottle containing the sample. There is nothing to show that the specimen seal was provided to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the bottle containing the sample. 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.”_ ## 21. In the absence of any evidence to convince the court that the specimen seal or specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P5, certificate of chemical analysis. Crl.A No.1915 of 2006 10 22. Yet another aspect which is highly relevant is that Ext.P4, the copy of the forwarding note, is silent with regard to the name of the person with whom the sample was sent for analysis. Exhibit P5, certificate of chemical analysis would show that the sample was received in the laboratory through a police constable No.6540. The prosecution has not offered any explanation as to why the space, meant for writing the name of the official with whom the sample was sent, remained unfilled in Ext.P4 forwarding note. 23. The learned Magistrate omitted to write the date on which he affixed the signature in Ext.P4. There is no evidence to convince the court as to who had received the bottle containing the sample from the court. In a situation like this, it was imperative for the prosecution to examine the thondi clerk of the court or the official concerned to prove the tamper-proof despatch of the sample to the laboratory. While dealing with a similar fact situation this Court in ## _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], held thus: _“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._ Crl.A No.1915 of 2006 11 - _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 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.”_ 24. In the instant case, the property clerk of the court, the police official who received the bottle containing the sample from the court and the police official who delivered the bottle to the Chemical Examiner's laboratory have not been examined. The accused is entitled to benefit of doubt due to the above reason also. 25. The prosecution must fail in this case for the following Crl.A No.1915 of 2006 12 reasons: - (i) The prosecution failed to establish that the contraband - seized at the scene of occurrence was sealed then and there. - (ii) There is absolutely no evidence as to who had drawn the sample. - (iii) The prosecution failed to establish that any specimen seal - was provided to the Chemical Examiner's laboratory for verification. - (iv) The sample bottle changed several hands, but none of those witnesses, who had handled the sample, was examined to establish the tamper-proof despatch of the sample to the laboratory. 26. 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 27. It is settled that the prosecution in a case of this nature can Crl.A No.1915 of 2006 13 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. {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 28. 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. 29. The resultant conclusion 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) read with 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