Anil Kumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **CRL.A NO.1808 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.333/2004 DATED 11.7.2006 OF II ADDITIONAL ASSISTANT SESSIONS COURT,KOZHIKODE** ## **APPELLANT/ACCUSED:** ANIL KUMAR AGED 42 YEARS S/O.SREEDHARAN, MALAYIL HOUSE, KAKKODI P.O., KOZHIKODE, PIN - 673 611. BY ADV SRI.SUNNY MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA THROUGH THE EXCISE INSPECTOR, CHELANNUR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. SRI.M.S. BREEZ (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.1808/2006 ## _**JUDGMENT**_ _Dated this the 2[nd] day of July, 2021_ Aggrieved by the judgment dated 11.7.2006, passed by the II Additional Assistant Sessions Judge, Kozhikode in Sessions Case No.333 of 2004, 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 5.5.2000, the accused was found in possession of 2½ litres of illicit arrack on the Moottoli–Payimbra road. He was arrested by the Excise Inspector, Chelannur who seized the contraband article from his possession. 4. After completion of investigation, final report was submitted against the accused by PW4, Excise Inspector, before the Judicial First Class Magistrate Court-I, Kozhikode. The case was committed to the Sessions Court, Kozhikode, from where it was made over to the IInd Additional Assistant Sessions Court, Kozhikode. On appearance of the accused, charge was framed against the accused for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 3 Crl.A.No.1808/2006 5. The prosecution examined PW1 to PW4 and proved Exhibits P1 to P7 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. The trial court heard the matter under Section 232 Cr.P.C. and found that there was 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, convicted the accused and sentenced him to undergo simple imprisonment for a term of one year and to pay a fine of Rupees One Lakh. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. It has been brought to the notice of this Court that since the impugned judgment, by which a sentence of imprisonment for one year and a fine of Rupees One lakh was imposed, was passed by an Assistant Sessions Judge this appeal ought to have been filed before the Sessions Court concerned under Section 374(3)(a) of the Cr.P.C. The appeal has been pending on the files of this Court for the last more than 14 years. 4 Crl.A.No.1808/2006 If the appellant is relegated to the Sessions Court by returning the appeal on technical ground such a course will be a travesty of justice as this Court committed an error by admitting and keeping the appeal for such a long time without realising the defect regarding the forum of appeal. The appellant is entitled to the constitutional protection enshrined in Article 21 of the Constitution for speedy trial. The consequence of returning the appeal will be in effect denial of the right guaranteed by the Constitution under Article 21. Hence this Court decides to proceed with the appeal and to dispose of it on merits. 9. On the merit of the appeal, the learned counsel for the appellant contended that the prosecution failed to establish that the sample stated to have been drawn from the scene of occurrence ultimately reached the hands of the Analyst. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. PW1, the Excise Range Inspector, Chelannur, detected the offence. PW1 gave evidence that on 5.5.2000, the accused was found in possession of 2½ litres of illicit arrack in a plastic can on the Moottoli – Payimbra road. PW1 arrested the 5 Crl.A.No.1808/2006 accused from the place of occurrence, seized the contraband substance and prepared Exhibit P2 seizure mahazar. He collected 180 ml. of illicit arrack in a bottle as sample and sealed the same. PW1 prepared Exhibit P5 requisition for chemical analysis. He produced the accused before the learned Magistrate on 6.5.2000. He also produced the properties seized from the possession of the accused before the court on 6.5.2000 itself. PW2, the Preventive Officer, who had accompanied PW1 in the search and seizure, supported the version of PW1. No independent witnesses were examined. PW3, the then Village Officer, Kakkodi, prepared Exhibit P6 sketch of the scene. PW4, the Excise Inspector, Chelannur conducted investigation and submitted final report. 12. The learned counsel for the appellant submitted that the prosecution failed to establish the date on which the sample was sent to the Chemical Examiner’s laboratory. He also submitted that Exhibit P5, the copy of the forwarding note, is silent as to the person who received the sample from the court for delivering the same to the laboratory. 13. The learned counsel for the appellant brought to my notice that Exhibit P7, certificate of chemical analysis, refers to letter No.PR 91/2000 dated 6.5.2000 of the Judicial First Class 6 Crl.A.No.1808/2006 Magistrate Court-I, Kozhikode whereby the sample was forwarded to the laboratory. But, the sample reached the laboratory only on 9.6.2000. The learned counsel for the appellant submitted that there is nothing to show as to who was in possession of the sample from 6.5.2000 to 9.6.2000. Relying on the above referred infirmity, the learned counsel for the appellant submitted that the prosecution failed to establish that the sample stated to have been drawn at the scene of occurrence ultimately reached the hands of the chemical analyst. 14. The learned Magistrate has not written the date on which he affixed his signature in Exhibit P5. The space meant for writing the name of the Excise Official with whom the sample was sent remained unfilled in Exhibit P5. Exhibit P7 would show that the learned Magistrate has forwarded the sample as per letter No.PR 91/2000 dated 6.5.2000. Exhibit P5 is silent as to who received the sample from the court. Exhibit P7 would show that the sample was delivered at the Chemical Examiner’s laboratory on 9.6.2000 through Excise Guard by name Padmanand. A question arises as to who was in custody of the sample during the period from 6.5.2000 to 9.6.2000. Exhibit P5 only says that the sample was sent by a special messenger. This Court is in the 7 Crl.A.No.1808/2006 dark as to who received the sample from the Magistrate's Court concerned as well as the date on which it was received by the person concerned. If the learned Magistrate had indicated the date on which the sample was sent to the laboratory in Exhibit P5, this doubt would not have arisen. It is the duty of the prosecution to establish the date on which the sample bottle was handed over to the special messenger for delivering the same to the Chemical Examiner’s laboratory and also the person with whom it was sent. What is available in evidence is that the learned Magistrate by letter dated 6.5.2000 forwarded the sample to the laboratory and the same reached the laboratory on 9.6.2000 through Excise Guard by name Padmanand. The prosecution failed to establish that the sample was actually received by Sri.Padmanand from the court. There is no evidence to show the date on which the official concerned received the sample from the court. 15. 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_ 8 Crl.A.No.1808/2006 _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 tamperproof 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.”_ _Kumaran v. State of Kerala_ (supra) was followed by this Court in _**Jayakumar v. State of Kerala** (2018 KHC 3165)_ . In the above cases, this Court has held that in cases where the copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis and the learned Magistrate failed to write the date on which he affixed the signature or initial, it was imperative for the prosecution to examine the thondi clerk of the court or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. 16. In the instant case, neither the thondi clerk nor the Excise Guard through whom the sample was sent to the 9 Crl.A.No.1808/2006 laboratory was examined. 17. This Court is kept in the dark as to who received the bottle containing the sample from the court. The date on which the official concerned received the bottle containing the sample to deliver the same to the Chemical Examiner's laboratory, is also not evident from the oral evidence of the witnesses and the documents marked in evidence. In such a situation, the prosecution ought to have examined the Thondi Clerk or the Excise Official concerned to establish the tamper-proof despatch of the sample to the laboratory. 18. Admittedly, the sample changed several hands before the same reached the Analyst. None of the officials who handled the sample have been examined. Non-examination of those witnesses would lead to the conclusion that the prosecution failed to establish the tamper-proof despatch of the sample to the Chemical Examiner's laboratory. [Vide: _State of Rajasthan v. Daulat Ram [(1980) 3 SCC 303], Ravi v. State of Kerala & another (2011(3) KHC 121) and Valsala v. State of Kerala (1993 KHC 798)]_ . 19. It is settled law that the prosecution can succeed only if it is established that the sample which was drawn from the 10 Crl.A.No.1808/2006 contraband liquor allegedly seized from the accused ultimately reached the hands of the analyst. [vide : _State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)]_ . In view of the above referred infirmity, this Court comes to the conclusion that the prosecution failed to establish the link evidence to connect the accused with the contraband substance. In the result, the appeal is allowed. The accused is acquitted of the offence under Section 8(2) of the Abkari Act. He is set at liberty. SD/- **K.BABU, JUDGE** csl