Anil Kumar @ Mathi Vijayan S/O Chandran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 13[TH] DAY OF AUGUST 2021 / 22ND SRAVANA, 1943** **CRL.A NO. 987 OF 2007** **AGAINST THE JUDGMENT IN SC 1411/2001 OF ADDITIONAL S.C.-TRIAL** **OF ABKARI ACT CASES, NEYYATTINKARA, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **ANIL KUMAR @ MATHI VIJAYAN S/O.CHANDRAN, THANNIPATTOM ANIL BHAVAN, CHEMBOORU DESOM, KEEZHAROOR VILLAGE, NEYYATTINKARA** . BY ADV SRI.G.SUDHEER ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.987 of 2007 2 ## **K.BABU, J.** **==========================** _Dated this the 13[th] day of August, 2021_ ## _**JUDGMENT**_ Challenge in this appeal is to the judgment dated 16.5.2007, passed by the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara in S.C.No.1411/2001. By the impugned judgment, the appellant/accused has been convicted of the offence punishable under Section 58 of the Abkari Act. 2. The prosecution case is that on 18.6.2000, at 6 pm., the accused was found in possession of 4 litres of arrack in a 5 litre can and a glass tumbler at Chempooru in Keezharoor Village. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court III, Neyyattinkara. The case was committed to the Sessions Court, Neyyattinkara from where it Crl.A No.987 of 2007 3 was made over to the Additional Sessions Court, Neyyattinkara. On appearance of the accused, charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P8 and MOs1 and 2. 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 learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 58 of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. Crl.A No.987 of 2007 4 6. Heard Sri.G.Sudheer, the learned counsel appearing for the appellant and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 10. PW4, the Sub Inspector of Police, Vellarada detected the offence. He has given evidence that on 8.6.2000 while the police party led by him was on patrol duty, on getting reliable information that the accused was engaged in the sale of illicit arrack, they proceeded to there. The accused was found in possession of the contraband substance Crl.A No.987 of 2007 5 contained in a 5 litre can and a glass tumbler. The accused was arrested by PW4. He seized the contraband substance as per Ext.P1 mahazar. PW1, an independent witness, and PW3, the police official who had accompanied PW4 in the search and seizure, supported the prosecution case. PW2 did not support the prosecution. PW5, the property clerk of the Judicial First Class Magistrate Court III, Neyyattinkara gave evidence that she had drawn the sample from the contraband substance produced before the court. 11. The learned counsel for the accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of analyst: a) There is no convincing evidence to show that the contraband substance stated to have been seized from the possession of the accused actually reached the court in a tamper proof condition. b) No sample was drawn at the scene of occurrence by the detecting officer. Crl.A No.987 of 2007 6 c) The genuineness of the sample taken by PW5, the property clerk, is doubtful. d) The prosecution failed to establish that the sample collected by PW5 reached the laboratory without tampering. 12. The learned counsel contended that there is no material to convince the court that MO1 can containing the liquor allegedly seized from the place of occurrence reached the court in a tamper proof manner. 13. The contention of the learned counsel is based on the fact that the prosecution failed to establish that the can with the contraband substance was sealed at the place of occurrence. Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure does not contain the nature and description of the seal used by the detecting officer. PW4, the detecting officer, has not given evidence as to the nature of the seal used by him. The prosecution has no case that the specimen impression of the seal used by the detecting officer at the place of occurrence had been produced before the court. But PW4, the detecting officer, Crl.A No.987 of 2007 7 while giving evidence stated that he had produced the specimen impression of the seal before the court. PW5, the property clerk of the court, also stated that the specimen impression of the seal had been produced before the court. The said specimen impression has not been produced and marked in evidence. I have gone through the entire records in this case. I failed to see the specimen impression stated to have been produced by the detecting officer along with the articles produced before the court. If the specimen impression of the seal had been produced before the court, then Ext.P1 seizure mahazar or the list of properties would have found a mention of the same. In the absence of any convincing materials to show that the specimen impression of the seal had been produced before the court, the oral evidence of PW4 and PW5, to the effect that the specimen impression had been produced and the seal on MO1 was verified with the aid of the same, is not credible. 14. Admittedly, no sample was drawn by the detecting officer at the scene of occurrence. PW5, the property clerk, gave evidence that as per the instructions of the learned Crl.A No.987 of 2007 8 Magistrate, on 9.6.2000 she conducted sampling. According to her, she collected 180 ml of liquor from MO1 can in a bottle and sealed the same. She further added that the learned Magistrate had given oral direction to take sample from the contraband substance. It is pertinent to note that no contemporaneous documents were prepared at the time of collecting sample by PW5. No proceedings were seen issued by the learned Magistrate, authorizing PW5 to take a specified quantity of liquor as sample from the contraband substance. There is nothing to show that any of the superior officers supervised the act of taking sample by PW5. The process in which the sample was collected by PW5 is under vehement challenge from the side of the accused. The learned counsel for the accused contended that the genuineness of the sample collected is doubtful in the absence of any material to show that the learned Magistrate issued any direction in this regard. I find force in the argument of the learned counsel for the appellant. 15. PW5 stated that the specimen impression used by her was forwarded to the Chemical Examiner's laboratory. The Crl.A No.987 of 2007 9 seal contained in Ext.P1(a), the covering letter whereby the learned Magistrate forwarded the sample to the laboratory, is not legible. The inevitable conclusion is that the prosecution failed to convince this Court that the Chemical Examiner could verify the sample received in the laboratory with the specimen seal stated to have been produced there. 16. Though the sample was drawn on 9.6.2000, the same reached the laboratory on 8.8.2000. PW5, the property clerk, stated that she had handed over the sample to Police Constable No. 8228 on 8.8.2000. Her evidence is with reference to Ext.P7 certificate of chemical analysis and Ext.P1(a) copy of the covering letter forwarding the sample to the laboratory. She further stated that the endorsement showing the receipt of the bottle containing the sample by the police official concerned is seen in Ext.P8. I have gone through Ext.P8, the copy of the relevant page of the thondi register. Ext.P8 would show that the sample was handed over to a Police Constable No.7975 on 20.7.2000. This is clear from Ext.P1(a), wherein the date shown on the top as 20.7.2000 is seen struck off and the date 8.8.2000 has been Crl.A No.987 of 2007 10 incorporated. Ext.P1(a) would further show that the number of the police official, with whom the sample was forwarded, noted as PC 7975 has been corrected as 8228. These circumstances create doubt as to the custody of the sample during the interregnum between 20.7.2000 and 8.8.2000. Ext.P7 certificate of analysis would show that the sample was delivered to the laboratory by PC 8228 on 8.8.2000. It has come out in evidence that on 20.7.2000 the sample was received by PC 7975. A question arises as to what happened to the sample received by PC 7975 from the court on 20.7.2000. Both these police officials have not been examined. Non examination of PC 7975 and PC8228 to rule out this discrepancy is fatal to the prosecution. The irresistible conclusion is that the prosecution failed to establish that the sample drawn from the court eventually reached the Chemical Examiner's laboratory. This is an important missing link to connect the accused with the contraband substance. 17. In _**Vijay Pandey v. State of U.P** (AIR 2019 SC 3569)_ , the Apex Court held that mere production of a laboratory Crl.A No.987 of 2007 11 report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 18. 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 found guilty of the offence punishable under Section 58 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 charge ; (iv) He is set at liberty. **Sd/-** **K. BABU JUDGE** **ab**