Babu Kuttikkattill Veedu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 CRL.A NO. 2154 OF 2007 AGAINST THE ORDER/JUDGMENTSC 798/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA ``` ## **`APPELLANT/S:`** ``` BABU KUTTIKKATTIL VEEDU, PALLANA MURI,, THRIKKUNNAPUZHA VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2154 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 22.10.2007 passed by the Additional Sessions Court, Fast Track -II, Alappuzha in Sessions Case No.798 of 2005, the accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 30.07.2003 at 05.00 p.m., the accused was found in possession of two litres of arrack at Pulinthanam Junction 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 8(2) and 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made ``` CRL.A NO. 2154 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** over to the trial Court. On the 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 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 6 and proved Exts.P1 to P6 and MO1. 5. After the closure of evidence on behalf of the prosecution, 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 the offences under ``` CRL.A NO. 2154 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** Sections 8(2) and 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri.S. Sanal Kumar, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 13.07.2003. The Detecting Officer arrested the accused and seized the contraband substance at the scene of occurrence. He had also drawn sample from the bulk quantity of the arrack allegedly seized from the place of occurrence. Ext.P1 ``` CRL.A NO. 2154 OF 2007 ``` ..5.. seizure mahazar, the contemporaneous document prepared to evidence seizure does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 9. The specimen of the seal has not been produced before the Court for ensuring the genuineness of sample produced before the Court. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for comparison. Forwarding note/ requisition for sending sample was not produced and marked. 10. In **Bhaskaran v. State of Kerala** (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. ``` CRL.A NO. 2154 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 11. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample 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, no evidentiary value can be attached to the Chemical Analysis Report. 12. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. ``` CRL.A NO. 2154 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 13. In the instant case the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. 14. 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. The appellant/accused is therefore found not guilty of the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. In the result, ## (i) The Appeal is allowed ; ``` CRL.A NO. 2154 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offences alleged; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj