Anil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 CRL.A NO. 1553 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 970/2004 OF ADDITIONAL DISTRICT** **COURT & SESSIONS JUDGE (FAST TRACK COURT-I), THIRUVANANTHAPURAM** ## **APPELLANT:** **ANILKUMAR** **S/O.DEVADASSAN, ANIL MANDIRAM, OONNIMOODU DESOM, AYIROOR VILLAGE, CHIRAYINKIL TALUK.** **BY ADVS. SRI.K.RAJESH KANNAN SRI.N.HARI KUMAR** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. M.C.ASHI-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1553 OF 2007** **2** ## **K.BABU, J.** =================== ## **Crl. A. No. 1553 of 2007** =================== Dated this the 29[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 30.07.2007, passed by the Additional District & Sessions Judge (Fast Track Court-I), Thiruvanathapuram in SC.No.970/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that the accused was found in possession of 6.495 litres of Indian made foreign liquor in contravention of the provisions of the Abkari Act. 4. After completion of the investigation, the final report was submitted against the accused for the offence **CRL.A NO. 1553 OF 2007** **3** punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate, Varkala. The case was committed to the Sessions Court, Thiruvanathapuram from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P9 and MOs 1 and 2. 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 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, found that the accused is guilty of offence under Section 55(a) of the **CRL.A NO. 1553 OF 2007** **4** Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1 lakh under Section 55(a) of the Abkari Act. 7. Heard Sri.K.Rajesh Kannan, 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 appellant/accused contended that, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to 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. 1553 OF 2007** **5** 11. PW3, the Excise Inspector, Excise Range, Attingal was on patrol duty at 7.00 pm on 17.09.2002. When the Excise team led by PW3 reached Oonnimmoodu Junction, near Varkala, they found the accused riding a scooter bearing registration No. KL.07.Q. 5797 through the public road near Oonnimmoodu Electricity office. The Excise team intercepted the vehicle. They inspected the vehicle and found that, the accused was in possession of 22 bottles of Indian Made Foreign Liquor. 12. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW4, the Excise Preventive Officer who had accompanied PW3, supported the prosecution. PW5 conducted the investigation and submitted the final report. PW6, the property clerk of the Court, gave evidence that she had received the contraband substances and forwarded three bottles containing liquor to the Chemical Examiner's Laboratory for analysis. 13. The learned counsel for the appellant/accused **CRL.A NO. 1553 OF 2007** **6** contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was actually produced before the Court and forwarded to the Chemical Examiner's Laboratory for analysis. 14. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: a) The nature and description of the seal stated to have been affixed on the packet that contained the liquor has not been described in any of the contemporaneous documents prepared by the detecting officer. b) The detecting officer has not given convincing evidence as to the nature of the seal used by him. c) The specimen impression of the seal had not been produced before the Court and forwarded to the Chemical Examiner for comparison. d) The detecting officer had not taken sample at the scene of occurrence and none of the bottles allegedly recovered from the place of occurrence were sealed by him. **CRL.A NO. 1553 OF 2007** **7** 15. Ext. P1 is the seizure mahazar prepared at the scene of occurrence. The detecting officer has not narrated the nature and impression of the seal used by him in Ext.P1 seizure mahazar. There is nothing to show that, the specimen impression of the seal used by the detecting officer was produced before the Court to enable the Court to satisfy the genuineness of the properties including the sample produced. PW6 has given oral evidence that, she received the properties produced before the Court after verifying the same. There is no evidence to show that, any specimen impression of the seal was produced before the Court. So the credibility of the verification stated to have been made by the property clerk is doubtful. Only if the specimen impression of the seal is produced along with the properties, the learned Magistrate or the officer concerned in the Court can satisfy the genuineness of the properties produced before the Court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Krishnadas v. State of Kerala**_ [2019 KHC 191], **CRL.A NO. 1553 OF 2007** **8** _**Achuthan v. State of Kerala**_ [2016 (1) KLD 391 = ILR 2016 (2) Ker. 145]}. 16. Admittedly, no sample was drawn at the scene of occurrence. The detecting officer has submitted a request before the Court to draw sample and forward the same to the Chemical Examiner's Laboratory as per Ext.P6 letter dated 18.09.2002. PW6, the property clerk of the Court, gave evidence that, she had taken one bottle containing 375 ml 'Gold Band Brandy', one bottle containing 180 ml 'Blue Moon Special Rum' and one bottle containing 375 ml 'Majestic XXX Rum' and sealed the same and forwarded to the Chemical Examiner's Laboratory. According to PW6, she had collected the sample as per the directions of the learned Magistrate. No proceedings have been recorded to see that, the learned Magistrate directed the property clerk to draw a particular quantity of liquor as sample and forward the same to the laboratory. The competence of the property clerk to collect the sample at the request of the investigating officer is under **CRL.A NO. 1553 OF 2007** **9** vehement challenge. 17. Ext.P7 certificate of chemical analysis shows that one bottle containing 375 ml 'Gold Band Brandy', one bottle containing 180ml 'Blue Moon Special Rum' and one bottle containing 375 ml 'Majestic XXX Rum' were received in the laboratory on 11.10.2002 through Excise Guard by name Sri. Chenthamarakshan. Ext.P6 is the copy of the requisition prepared by the Excise Inspector and counter signed by the Judicial First Class Magistrate, Varkala. In the copy of the requisition for chemical examination, there are corrections, in the entry against the list of articles forwarded, regarding the size of the bottles containing the liquor. The prosecution has not offered any explanation for the corrections seen in the copy of the requisition. In the copy of the requisition, it was originally recorded that three 180 ml bottles containing three different types of liquor, were forwarded to the Chemical Examiner's Laboratory. This was subsequently corrected as 375 ml in respect of two bottles. The copy of the letter of the **CRL.A NO. 1553 OF 2007** **10** learned Magistrate whereby the bottles containing the sample were forwarded was prepared on 12.10.2002. Ext.P7 certificate of the chemical analysis would show that, the bottles containing the sample were forwarded to the laboratory as per letter dated 11.10.2002 of the Judicial First Class Magistrate, Varkala. What was subjected to analysis was the sample received on 11.10.2002. The letter attached to Ext.P6 of the learned Magistrate shows that, the sample was forwarded only on 12.10.2002. This creates serious suspicion as to whether the liquor allegedly recovered from the possession of the accused was actually subjected to chemical analysis in the laboratry. 18. Ext.P6, copy of the forwarding note, does not contain the specimen impression of the seal stated to have been affixed on the bottles containing the sample. There is no convincing evidence to show that, the specimen impression of the seal had been forwarded to Chemical Examiner's Laboratory for verification. In the absence of any evidence to **CRL.A NO. 1553 OF 2007** **11** show that, the specimen impression of the seal had been provided to the Chemical Examiner, no sanctity can be attached to Ext.P7 certificate of chemical analysis. 19. When the specimen of the seal affixed on the bottles containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused, reached the hands of the Chemical Examiner without any tampering (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 20. In the instant case, there is nothing to show that the specimen seal was provided to the Chemical Examiner for verification. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the **CRL.A NO. 1553 OF 2007** **12** detecting officer and that the same had been provided to the Chemical Examiner. 21. The resultant conclusion is that no evidentiary value can be given to Ext.P7 chemical analysis report. 22. 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. 23. 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 the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 24. 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 **CRL.A NO. 1553 OF 2007** **13** punishable under Section 55(a) 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** LU