Anilkumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 CRL.A NO. 205 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 512/2000 OF ADDITIONAL DISTRICT COURT (ADHOC)III, TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANT/S:** ANILKUMAR, S/O. SADANANDAN, VALIAKUNNILPUTHENVILA VEEDU, CHITTATTINKARA DESOM, KIZHUVILAM VILLAGE, CHIRAYINKEEZHU TALUK. BY ADV SRI.J.JAYAKUMAR ## **RESPONDENT/S:** STATE OF KERALA, REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. BY SRI ARAVIND V MATHEW PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 205 OF 2007 2 ## **JUDGMENT** This appeal is filed under Section 374(2) of the Code of Criminal Procedure, against the judgment of conviction and sentence passed by the Additional Sessions Court FAST TRACK, Thiruvananthapuram in S.C. No. 512/2000 dated 3[rd] January 2007. 2. The accused/appellant faced trial for the offence punishable under Section 8(1) and 8(2) of the Abkari Act. 3. The prosecution case in short is that on 06.07.1996 at about 5.30 p.m., the accused was found in possession of 1 ½ litres of arrack, in contravention of the Abkari Act and rules at Cosmo garden in Keezhvilam Village at Chittattikara Desom and thereby committed the offence. 4. The prosecution case in short is that on 06.07.1996 at about 5.30 p.m., CW4, the Excise Inspector of Chirayankeezh range and PW2, the Preventive Officer, while on patrol duty found the accused in the pathway leading from Valiyakunnu to Cosmo gardens near the pond CRL.A NO. 205 OF 2007 3 situated in Cosmo Gardens in Keezhvilam Village at Chittattinkara Desom, carrying a blue plastic bag. On seeing them, the accused tried to escape. CW4 and PW2 followed and intercepted him. The blue plastic bag carried by the accused was seized and on inspection, there was a bottle which contains 1 ½ litres of arrack. The accused was arrested at the spot. 5. The bag and bottle containing illicit arrack were seized, properly packed, sealed and labelled in the presence of witnesses. Thereafter, Exhibit P4, seizure Mahazar was prepared at the spot. Thereafter, CW4 went to the Police Station with contraband articles along with the accused and registered the crime. Exhibit P5 is the crime and occurrence report. PW3, the Excise Inspector, Chirayankeezh Range conducted investigation. The sample was sent for chemical analysis and after the chemical analysis, the report was received which was marked as Exhibit P8. The report shows that the sample CRL.A NO. 205 OF 2007 4 contains Ethyl Alcohol. After completing the investigation, PW5 filed final report before the Magistrate. After complying with the statutory formalities, the learned Magistrate committed the case for trial to the Court of Sessions. The accused appeared before the court. After hearing both sides, the court below framed charge against the accused under Section 8(1) and 8(2) of the Abkari Act. Charge was read over and explained to the accused, who pleaded not guilty. 6. The prosecution examined PWs 1 to 3 and marked Exhibits P1 to P8. MO1 and MO2 were marked and identified. On completing the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. No defence evidence was adduced. The court below after trial found that the accused has committed the offence punishable under Section 8(2) of the Abkari Act and was convicted for the CRL.A NO. 205 OF 2007 5 said offence. The accused was sentenced to undergo Simple Imprisonment for six months and to pay fine of Rs.1,00,000/-, in default to suffer Simple Imprisonment for three months as per the impugned judgment. The said judgment is under challenge in this appeal. 7. I have heard Smt. Mini. V. Appukkuttan, the learned counsel for the appellant/accused and Sri. Aravind V. Mathew, the learned public prosecutor. 8. The learned counsel for the appellant assailed the finding of the guilt passed against the accused mainly on two grounds. The first ground canvassed by her is that there is no spot sampling and there is absolutely no evidence to show that the sampling was done. The second ground canvassed is that there is undue delay in conducting and completing the investigation. 9. It is trite that the prosecution has to prove all the links starting from the seizure of the contraband and drawing of sample from it, till it reached the hands of the CRL.A NO. 205 OF 2007 6 Chemical Examiner. This Court in **Gireesh v. State of Kerala** [2019 (4) KLT 79], has held that when the prosecution relies upon the report of the chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. 10. The only evidence adduced by the prosecution to prove the incident and to fix the culpability on the accused, is the evidence of Preventive Officer, who was examined as PW2. The Detecting Officer, PW4 could not be examined as he was no more. A perusal of the evidence of PW2 show that no sampling was done at the spot. Exhibit P4 Mahazar also would not show that the sampling was done at the spot. There is absolutely no evidence as to who drew the sample, when was it done and where was it done. It is the duty of the prosecution to prove that the sample was CRL.A NO. 205 OF 2007 7 drawn from the contraband allegedly seized from the possession of the accused in accordance with Rules and the said sample has reached the hands of the Chemical Examiner for examination in a tamper proof condition. In this case, there is no evidence of drawing sample and there is also no evidence to show that the sample drawn was sealed properly and was in a tamper proof condition. The person who drew sample was not examined. The forwarding note does not contain the sample seal. During the trial, the sample seal was not exhibited also. In **Moothedath Sivadasan v. State of Kerala** [2021 (2) KLJ 80], this Court recently held that in the absence of any link evidence to show 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, it is unsafe to convict the accused. 11. The next ground canvassed by the learned counsel for the appellant is regarding the delay in the CRL.A NO. 205 OF 2007 8 investigation. The date of occurrence was on 06.07.1998 and the final report was filed only on 12.01.2000. The chemical analysis report was received on 21.11.1998 and witnesses were examined only on 03.01.2000 and 04.01.2000. This long delay in conducting the investigation and filing report has not been explained properly. That apart, the official with whom the sample was sent for chemical analysis was not mentioned in the forwarding note, nor did the prosecution examine the Thondi Clerk of the court or Excise Guard concerned to prove the tamper proof of despatch of the sample sent to the laboratory. This Court in **Kumaran P. v. State of Kerala and Another** [2016 (5) KHC 632], has 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 o the CRL.A NO. 205 OF 2007 9 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 CRL.A NO. 205 OF 2007 10 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 CRL.A NO. 205 OF 2007 11 the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained". 12. The aforesaid vital aspects were not taken into consideration by the court below, while appreciating the prosecution evidence. For these reasons, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. ## **Sd/-** ## **DR. KAUSER EDAPPAGATH** ## **JUDGE** avs