Annu Poijari @ Annu Ameen v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021 / 19TH BHADRA,** **1943** **CRL.A NO. 311 OF 2014** **AGAINST THE JUDGMENT DATED 7-3-2014 IN SC 964/2012 OF ADDITIONAL DISTRICT & SESSIONS COURT - II, KASARAGOD.** ## **APPELLANT/ACCUSED :** **ANNU POOJARI @ ANNU AMEEN, AGED 47 YEARS, S/O.SARASAPPA POOJARI, SUNNADA, CHIPPAR VILLAGE, KASARAGOD TALUK AND DISTRICT.** **BY ADV SRI.JAWAHAR JOSE.** ## **RESPONDENT :** **THE STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI.ARAVIND MATHEW.** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appeal No.311 of 2014 2 ## **A.BADHARUDEEN, J. ------------------------------------------------** _**Crl.Appeal No.311 of 2014**_ **---------------------------------------------------Dated this the 10[th] day of September, 2021** ## **J U D G M E N T** The sole accused in Sessions Case No.964 of 2012 on the file of the 2[nd] Additional Sessions Judge, Kasaragod is the appellant herein and he impugns judgment dated 07-03-2014 in the above case. The State of Kerala is represented by the Public Prosecutor is the respondent herein. 2. The prosecution case is that on 13-01-2012 at about 6.10 p.m., the accused herein possessed 25 bottles of Indian Made Foreign Liquor of 180 ml each against the prohibitions under the Abkari Act near Bayarpadavu in Chippar Village. The accused was arrested and the contraband was taken into custody and crime alleging commission of offence under Section 55(a) of the Abkari Act was registered. 3. After investigation, final report alleging commission of above offence was filed before the Judicial First Class Magistrate Court - I, Kasaragod. Then the case was committed to the Sessions Court, Kasaragod and later made over to the trial court for trial and disposal. Crl.Appeal No.311 of 2014 3 4. The trial court framed charge under Section 55(a) of the Abkari Act and recorded evidence. PW's 1 to 5 were examined and marked Exts.P1 to P13 on the side of the prosecution. On closure of the prosecution evidence, the accused was questioned under Section 313(1)(b) of Cr.P.C and the incriminating circumstance in the evidence was brought to his notice and his explanation was recorded. Availing the opportunity provided to adduce defence evidence, DWs 1 and 2 were examined as defence witnesses. After appraisal of evidence and after hearing bothsides, the learned trial court convicted and sentenced the accused as under : “The accused to undergo rigorous imprisonment for two years and also to pay a fine of Rs.1,00,000/- (Rupees one lakh only) in default RI for three months. Set off u/s 428 Cr.P.C is allowed.” 5. The above conviction and sentence are under challenge before this Court . 6. While impeaching the veracity of the verdict, the learned counsel for the appellant submitted that the contraband was alleged to be recovered on 13-01-2012, but the same reached the court only on 16-01-2012. But the prosecution failed to explain who was in custody of the Crl.Appeal No.311 of 2014 4 contraband in between this period. So there is reason to disbelieve the prosecution case as to recovery of the contraband. It is submitted further that there is likelihood of tampering the contraband in between 13-01-2012 to 16-012012 as the prosecution failed to establish the custody of the contraband during the relevant period. It is submitted further that the accused is liable to be acquitted for the said reason alone by giving benefit of doubt. 7. Learned Public Prosecutor submitted that this is not a serious anomaly as the contraband reached the court without much delay on the fourth day of recovery. Thus he supported the conviction and sentence by giving emphasis to the available evidence. 8. On perusal of Ext.P8 forwarding note, the seal of the Judicial First Class Magistrate Court was affixed on 16-012017 though the prosecution evidenced through PW1, 4 and 5 would go to show that the recovery was effected on 13-01-2012. However, no evidence available to see the custodian of the contraband including the sample collected for getting the same analysed by the chemical examiner. If so, this argument is having merit. Before having finding on this argument, I would Crl.Appeal No.311 of 2014 5 like to address another argument raised by the learned counsel for the appellant. 9. It is submitted that it is necessary for the investigating officer to give evidence regarding the details of sample collected inclusive of the structure of the specimen seal agreed to assure that sample testing was defect free. 10. Coming to the facts and evidence in this case, it is true that the prosecution examined 5 witnesses to prove the prosecution case. Out of which, PWs'3 and 4, who are independent witnesses did not support the prosecution. The court below entered the conviction relying on the evidence of PW1, 2 and 5. On perusal of evidence of PWs'1 and 5, nothing could be gathered justifying the collection of sample, affixture of sample seal, forwarding of sample seal, the nature of seal affixed, etc. This is the context on which the delay in forwarding the sample to the court, as pointed out by the learned counsel, assumes significance. 11. It is settled by catena of decisions of this Court that the Detecting Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample, nature of the Crl.Appeal No.311 of 2014 6 seal used to affix on the seizure mahazar, etc. Further the Detecting Officer should also produce the specimen of the seal before the court. Moreover the specimen of the seal shall be provided under seizure mahazar in the forwarding note so as to ensure tamper free collection and production of sample before the court for getting chemical analysis report. That apart, for ensuring that sample of contraband allegedly seized by the Investigating Officer from the accused had reached the Chemical Examiner for analysis, it has to be proved that seal affixed on the sample also is provided to the Chemical Examiner for comparison. Decisions reported in [2015 (1) KHC 822], _**Krishnan H. v. State**_ ; [2019 KHC 191], _**Krishnadas v. State of Kerala** ;_ [2016 KHC 175], _**Achuthan v. State of Kerala**_ and [2020 KHC 5296], _**Bhaskaran K. v.** a_ _**State of Kerala & anr.**_ re relevant on this point. 12. In this connection it has to be observed that in a case of this nature the prosecution could succeed only if it is proved that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of Crl.Appeal No.311 of 2014 7 the Chemical Examiner without possibility of tampering. Decisions reported in [1980 KHC 873, _**State of Rajasthan v. Daulat Ram**_ ; 1993(2) KLT 550 (SC), _**Valsala v. State of Kerala**_ ; 2007 KHC 3404, _**Sasidharan v. State of Kerala**_ are given emphasis. 13. While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sample of the alleged contraband, the following measures to be followed: ## 14. **Steps to be followed by the officer** : **collecting the sample** (i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner; (ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note; Crl.Appeal No.311 of 2014 8 (iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained; (iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison; (v) The said officer shall depose about compliance of the above before the court while giving evidence. ## 15. **Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:** (i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court; (ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note; (iii) The forwarding letter shall contain the name of Crl.Appeal No.311 of 2014 9 the official who is entrusted to handover the sample to the Chemical Examiner; (iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample; (v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove. ## 16. **Measures to be ensured by the Chemical Examiner** : (i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit; (ii) In the chemical analysis report the said fact shall Crl.Appeal No.311 of 2014 10 be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C. 17. Unless and until the above safety measures are not ensured, it cannot be said that the sample of the contraband subjected to chemical examination by the Chemical Examiner is one collected from the possession of the accused. Any lacuna in this regard is a reason to disbelieve the recovery and the chemical analysis report. Consequently, the entire prosecution case would fail. 18. It is true that herein also chemical analysis report with a positive finding showing presence of prohibited liquor was produced. In the decision reported in _**AIR 2019 SC 3569, Vijai Pande v. State of U.P,**_ the Apex Court held that mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be corelated. 19. On evaluation of the evidence available, the mandates necessary to ensure tamper proof collection of sample of the alleged contraband and its examination Crl.Appeal No.311 of 2014 11 without tampering as discussed in detail, failed to be established by the prosecution without reasonable doubts. 20. The evidence discussed in detail would throw light to the anomalies in the matter of collection of sample till the same was forwarded to the chemical examiner inclusive of delay in between 13.1.2012 to 16.1.2012 in producing the sample before the court. The said anomalies make the prosecution evidence in the midst of doubts. No doubt, benefit of doubt shall go in favour of the accused/appellant. Therefore, the accused/appellant herein is entitled to benefit of doubt and as such the conviction and sentence imposed by the trial court in the above circumstances cannot sustain. In view of the matter, the same are liable to be set aside. 21. In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the accused are set aside. Consequently, the appellant/accused is acquitted for the offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond executed by the appellant/ accused shall stand cancelled. He is set at liberty forthwith. Amount, if any, being part of the fine deposited by the Crl.Appeal No.311 of 2014 12 accused/appellant by order of this Court shall be refunded to him in accordance with the procedure established by law. Sd/- ## **A. BADHARUDEEN, JUDGE** amk