A.P. Krishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** **CRL.A NO. 2367 OF 2007** **AGAINST THE JUDGMENT IN SC 299/2005 OF ADDITIONAL SESSIONS COURT,** ## **FAST TRACK-III, PALAKKAD** ## **APPELLANT/ACCUSED:** A.P.KRISHNAN, S/O. KORI, ADANGAL PARAMBU VEEDU, LAKKIDI PERUR VILLAGE, AKALUR, OTTAPPALAM. BY ADV JACOB SEBASTIAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING THE EXCISE RANGE OFFICER, OTTAPPALAM RANGE. BY ADV PUBLIC PROSECUTOR SMT.REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2367 of 2007 2 K.BABU, J. -------------------------------------Criminal Appeal No.2367 of 2007 --------------------------------------Dated this the 15[th] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.11.2007, passed by the Additional Sessions Court, Fast Track-III, Palakkad in S.C.No.299/2005, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.02.2002 at about 12.10 p.m, the accused was found possessing about 4 litres of illicit arrack at Ottappalam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of Crl.A No.2367 of 2007 3 the accused, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MO1. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. Jacob Sebastian, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The appellant died during the course of proceedings in the appeal. None of the near relatives of the appellant turned up. Crl.A No.2367 of 2007 4 8. It is trite that on the death of the appellant/accused in the case of a composite sentence of fine and imprisonment, the appeal shall not abate and this Court is bound to decide the appeal on merits, after giving sufficient opportunity to the near relatives of the appellant to proceed with the appeal against the sentence or fine. The Apex Court decision in Ramesan v. State of Kerala [(2020) 3 SCC 45] has declared the law on this aspect. 9. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) Exhibit P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) Exhibit P5 forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. - (c) The various officials who handled the sample during its transit from the Court to the laboratory were not examined. Crl.A No.2367 of 2007 5 10. The alleged seizure was effected on 25.02.2002. The detecting officer had prepared a seizure mahazar. I have gone through the seizure mahazar, which does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. 11. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 12. In Exhibit P5 forwarding note/requisition for sending sample the space meant for recording the name of the Excise guard with whom the sample was forwarded is left vacant. The date on which the sample was forwarded to the laboratory is also not mentioned in Ext.P5. Though the learned Magistrate countersigned in Ext.P5, he has not put the date on which he made his initial thereon. While dealing with a similar fact situation, this Crl.A No.2367 of 2007 6 ## Court in Kumaran v. State of Kerala [2016 (4) KLT 718], 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 tamper-proof 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 appreciating Crl.A No.2367 of 2007 7 the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 13. Exhibit P7 Certificate of Chemical Analysis shows that the sample remained in the custody of the property clerk till 19.03.2002. As per letter dated 19.03.2002, the sample was forwarded to the laboratory. The sample reached the laboratory only on 20.03.2002. An Excise guard by name Sri.Shibu delivered the sample to the laboratory. Neither the property clerk nor Sri.Shibu has been examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of these two witnesses is fatal to the prosecution. The prosecution failed to rule out the possibility of the sample being changed or tampered with. 14. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 20.03.2002, it was subjected to analysis only on 27.05.2004. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: Crl.A No.2367 of 2007 8 “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.” 15. In the instant case, the delay in the analysis of the sample has not been explained by the prosecution. 16. In the present case, the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. Therefore, Exhibit P7 Certificate of Chemical Analysis has no evidentiary value. 17. 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. 18. It is settled that the prosecution in a case of this nature Crl.A No.2367 of 2007 9 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 contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 19. 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 as discussed above. 20. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS