Anil Kumar v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **CRL.A NO. 1461 OF 2006** **AGAINST THE JUDGMENT IN SC 538/2004 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT -II, ALAPPUZHA APPELLANT/ACCUSED:** **ANIL KUMAR, S/O. KESAVAN, PALATHARAPADEETTETHIL, VATHIKULAM MURI, THEKKEKARA VILLAGE, MAVELIKKARA.** BY ADV GEORGE VARGHESE(PERUMPALLIKUTTIYIL) ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1461 of 2006 2 **K.BABU, J. ========================= Crl.A No.1461 of 2006** **==========================** Dated this the 7[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 4.7.2006, passed by the Additional Sessions Judge, Fast Track Court II, Alappuzha, in S.C.No.538/2004, the accused has preferred this appeal. The trial court convicted the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. 2. The prosecution case is that on 22.10.2002 at 4.45 pm., the accused was found in possession of 3 litres of arrack in a plastic can having a capacity of 5 litres for sale at Decent mukku in Koippally Kanazhama Muri in Peringala Village. 3. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Kayamkulam. The case was committed to the Sessions Court, Alappuzha from where it was made over Crl.A No.1461 of 2006 3 to the Additional Sessions Court, Fast Track Court II, Alappuzha. On appearance of the accused charges were framed against him for the offences punishable under Sections 8 (2) and 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MO1. DWs 1 and 2 were examined on the side of the accused. Defence proved Exts.D1 to D3. 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 arguments addressed from both sides, found that the accused is guilty of offences under Sections 55(a) and 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. No separate sentence was awarded to the accused for the offence under Crl.A No.1461 of 2006 4 Section 8(2) of the Abkari Act. 6. Heard Sri.George Varghese Perumpallikutty, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance said to have been seized from the possession of the accused eventually reached the hands of Public Analyst at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges 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. PW5, the Preventive Officer, Excise Range, Mavelikkara detected the offence on 22.10.2002. PW5 has given evidence that on the date of occurrence the excise team lead by him found the accused entering into Mavelikkara-Kuttitheruvu Crl.A No.1461 of 2006 5 road, from the lane on the northern side of Jaya Stores in Peringala Village, carrying a white cannas. According to PW5, on seeing the excise party, the accused attempted to escape. But he was apprehended by the excise team. PW5 seized the can, possessed by the accused, which contained 3 litres of illicit arrack. PW5 collected 200 ml of arrack from the can in a bottle having a capacity of 375 ml. and sealed the same. PW5 prepared Ext.P5 seizure mahazar and Ext.P2 arrest memo. The accused was taken to the Excise Range Office along with the articles seized. 11. PW1, another Preventive Officer, who had accompanied PW5, has given evidence in support of the version given by PW5. PWs 2 and 3, the independent witnesses, did not support the prosecution case. PW4, the Excise Inspector, Mavelikkara Range, conducted initial investigation in this case. PW6 completed investigation and submitted final report before the court on 2.4.2004. 12. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance, allegedly recovered from the possession of the accused, ultimately reached the hands of Public Analyst for the Crl.A No.1461 of 2006 6 following reasons: a) The detecting officer, (PW5) and the other official witness who had accompanied him (PW1) have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used. c) Ext.P6, the copy of the forwarding note, is silent with regard to the person with whom the sample was sent for analysis and the learned Magistrate who counter signed the same did not mention the date on which he affixed his signature. 13. I have gone through the depositions of witnesses and Ext.P1 mahazar. PW5, the detecting officer and the other witnesses who had accompanied him have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, does not contain the specimen of the seal stated to have been affixed on Crl.A No.1461 of 2006 7 the bottle, containing the sample. 14. In **Bhaskaran v. State of Kerala and another (2020 KHC 5296)** , while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: “21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle 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 sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied) Crl.A No.1461 of 2006 8 ## 15. In **Krishnadas v. State of Kerala (2019 KHC** ## **191)** this Court held thus: “7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied) 16. This Court is in the dark as to the person with whom the sample was sent to the laboratory. There is no evidence to show the date on which the sample was handed over to the official concerned for delivering the same to the laboratory. The learned Magistrate omitted to mention the date on which he affixed his signature in Ext.P6. 17. The learned counsel for the appellant relied on **Kumaran v. State of Kerala (2016(4) KLT 718)** to contend that this infirmity would lead to the conclusion that the prosecution failed to establish that the sample was sent to the Crl.A No.1461 of 2006 9 laboratory in a tamper proof condition and the accused is therefore entitled to benefit of doubt. ## 18. In **Kumaran v. State of Kerala (supra)** this Court 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. 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 tamperproof 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 Crl.A No.1461 of 2006 10 appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” (Emphasis supplied) 19. The prosecution has not examined the Thondi Cleark of the court or the Excise official concerned and hence failed to establish the tamper proof despatch of the sample to the laboratory. 20. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the laboratory 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. 21. It is settled that the prosecution in a case of this nature can 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. 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 Crl.A No.1461 of 2006 11 absence of link evidence as discussed above. 22. The upshot of the above discussion is that the prosecution failed to establish any material to connect the accused with the contraband articles. The conviction entered and sentence passed by the learned Additional Sessions Court, Fast Track Court II, Alappuzha, ignoring these vital aspects, cannot be sustained. The appellant/accused is therefore not guilty of the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. He is acquitted of the charges. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. **Sd/K. BABU JUDGE** ab