Anil Kumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 CRL.A NO. 1333 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 1362/2001 OF ADDITIONAL SUB COURT FOR TRIAL OF ABKARI ACT CASES,NEYYATTINKARA APPELLANT/ACCUSED: ``` ``` ANIL KUMAR S/O. SOMAN, KAMUVILAKATHU VEEDU, PAVAMKODE DESOM,, NEMOM VILLAGE, THIRUVANANTHAPURAM TALUK. ``` ``` BY ADVS. SRI.R.BINDU SASTHAMGNALAM PRASANTH M.P ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SR PUBLIC PROSECUTOR SMT. REKHA. S. (SR.P.P) ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA. S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1333 OF 2007 ``` ..2.. ## **JUDGMENT** This appeal arises from the judgment dated 07.06.2007 in S.C.No.1362/2001 on the file of the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara. By the impugned judgment, the appellant/accused was convicted for the offence under Section 58 of the Abkari Act. 2. The prosecution case is that on 09.01.1998 at about 12 noon, the accused was found in possession of 5 litres of illicit arrack in a black jerry can. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial Magistrate of First Class – I, Neyyattinkara. The case was committed to the Sessions Court, Thiruvananthapuram 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 58 of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the Trial Court. ``` CRL.A NO. 1333 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P9 and MO1. 5. After the 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 evidence against the accused and hence, he was called upon to enter on his defence, and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of offence under Section 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 Lakh. 6. Heard Sri.Bindhu Sasthamangalam, the learned counsel appearing for the appellant and Smt. Rekha S, the learned Senior Public Prosecutor for the respondent. 7. PW3, the Assistant Excise Inspector, Excise Range Office, Thiruvananthapuram was on patrol duty on 9.01.1998. When the excise team led by PW3 reached Pavamcodu in Nemom Village, the accused was found carrying a five litre black ``` CRL.A NO. 1333 OF 2007 ``` ..4.. jerry can. The excise team inspected the can in the possession of the accused. They found five litres of illicit arrack in the can. He was arrested from the spot and the contraband substance in his possession was seized as per Ext.P1 Mahazar. 8. PWs 2 & 4, the excise officials who had accompanied PW3, supported the prosecution version. PW1, an independent witness examined to prove the incident proper, did not support the prosecution. PW5, the Property Clerk of the Court, was examined to prove that she had drawn the sample from the bulk quantity of the illicit liquor produced before the Court. 9. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence actually reached the Court and was later subjected to analysis in the Chemical Examiner’s Laboratory. He relied on the following circumstances to establish his contentions. - i) The detecting officer had not produced the specimen of the seal before the Court at the time of production of the contraband substance contained in the can. - ii) The procedure adopted by the learned Magistrate ``` CRL.A NO. 1333 OF 2007 ``` ..5.. permitting the Property Clerk to collect the sample has no sanction of law. iii) Though the sample collected in the Court was forwarded to the laboratory on 13.01.1998, the same reached the laboratory only on 17.01.1998. 10. According to the prosecution, the MO1 Can contained 5 litres of illicit arrack and the same was recovered from the possession of the accused from the place of occurrence. MO1 was produced before the Court by the detecting officer **.** According to PW3, he had sealed the can at the place of occurrence. No specimen seal was seen produced before the Court. Ext.P1 Seizure Mahazar does not contain any description as to the nature of the seal used by the detecting officer. In **Bhaskaran K. v. State of Kerala and another** (2020 KHC 5296), this Court held that the specimen of the seal shall be produced before the Court so as to enable the Court to satisfy the genuineness of the sample produced. In the absence of any evidence as to the production of the specimen seal before the Court, the necessary inference is that the prosecution failed to establish that the contraband substance allegedly seized from ``` CRL.A NO. 1333 OF 2007 ``` ..6.. the place of occurrence eventually reached the Court in a tamper-proof condition. In the present case, no sample was drawn at the place of occurrence. After the production of the sample before the Court, the Investigating Officer requested the learned Magistrate to take sample. As per the directions of the learned Magistrate, the Property Clerk had drawn 150 ml of liquor from the bulk quantity of the liquor produced before the Court and sent it to the Chemical Examiner’s Laboratory. Drawing the sample and sealing the same are acts within the exclusive province of the Police officials or Excise officials concerned. This Court had an opportunity to consider this aspect in **BabuRaj v. State of Kerala (2021 (6) KLT 416)** wherein it was held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, which ``` CRL.A NO. 1333 OF 2007 ``` ..7.. is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala [2019 (2) KLT 974]** , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala [2020 (2) KLT 590]** , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer.” 11. In **BabuRaj v. State of Kerala** (Supra) this Court held that the procedure of drawing sample from the contraband substance by the Property Clerk of the Court has no sanction of law and no evidenciary value can be attached to the certificate of analysis obtained based on the sample drawn by the Property Clerk. 13. Yet another aspect that requires consideration is that though the sample was handed over to the excise guard concerned on 13.01.1998, the same reached the laboratory only ``` CRL.A NO. 1333 OF 2007 ``` ..8.. on 17.01.1998. Ext.P7 forwarding letter issued by the Magistrate concerned to the chemical examiner would show that the sample was forwarded through an excise guard by name Rameshan on 13.01.1998. Ext.P6, certificate of chemical analysis, shows that the sample reached only on 17.01.1998. Prosecution has not offered any explanation as to the delay in bringing the sample to the laboratory after obtaining the custody of the same from the Court. 14. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 318] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 15. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that the sample reached the laboratory in a tamper-proof ``` CRL.A NO. 1333 OF 2007 ``` ..9.. condition. 16. Another aspect to be considered is the delay in the analysis of the sample. Though the sample reached the laboratory on 17.01.1998, it was subjected to analysis only on 26.10.1998. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** [2019 KHC 191] **,** this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 17. As the procedure adopted in drawing the sample from the contraband substance has no sanction of law and the genuineness of the sample forwarded to the chemical examiner’s laboratory is doubtful, no evidenciary value can be given to Ext.P6, the certificate of chemical analysis. ``` CRL.A NO. 1333 OF 2007 ``` ..10.. 18. Resultantly, the prosecution failed to establish the link connecting the accused with the contraband. The learned Sessions Judge has disregarded these vital aspects while recording the impugned conviction and sentence. The appellant/accused is, therefore, not guilty of the offence punishable under Section 58 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** kkj