Babu S/o Sukumaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** **CRL.A NO. 2206 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 57/2007 OF ADDITIONAL DISTRICT** **COURT(ADHOC 2), THRISSUR** ## **APPELLANT/ACCUSED:** BABU S/O.SUKUMARAN, AINIPULLY HOUSE, CHAKKITHARA DESOM, ANJOOR VILLAGE, THALAPPILLY TALUK, THRISSUR DISTRICT. BY ADV SRI.K.A.SATHEESH BABU ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI. BREEZ M.S, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2206 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2206 of 2008** --------------------------------------- Dated this the 15[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 03-09-2008, passed by the learned Additional Sessions Judge (Fast Track Court-II), Thrissur in S.C No.57/2007, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 63 read with section 13 and section 55(i) of the Abkari Act. 3. The prosecution case is that on 22-04-2005 the accused was found in possession of 7.5 litres of Indian Made Foreign liquor in the provision shop bearing door No.AP/VIII/155 run by him at Chakkithara. According to the prosecution the accused had stored the contraband articles in his shop for the purpose of sale. 4. After completion of investigation, final report was submitted against the accused for the offences punishable under sections 55(a) and 55(i) of the Abkari Act before the Judicial First Class Magistrate Court, Kunnamkulam. The case was committed to Crl.A No.2206 of 2008 3 the Sessions Court, Thrissur from where it was made over to the Additional Sessions Court (Fast Track Court-II), Thrissur. On appearance of the accused charges were framed against him for the offences punishable under sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges levelled against him and therefore, he came to be tried by the trail court for the aforesaid offences. 5. The prosecution examined PWs 1 to 9 and proved Exts.P1 to P16 and MOs 1 to 4. 6. 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 trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offences under section 63 read with section 13 and section 55(i) of the Abkari Act and he was convicted 4 Crl.A No.2206 of 2008 thereunder. The accused was sentenced to undergo simple imprisonment for a term of 3 years and to pay a fine of Rs.1 Lakh under section 55(i) of the Abkari Act and for a period of six months under section 63 read with section 13 of the Abkari Act. 7. Heard Sri.K.A.Satheesh Babu, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor submitted that the prosecution could well establish the charges against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW1, the Excise Preventive Officer, Kunnamkulam Excise Crl.A No.2206 of 2008 5 Range, detected the offence. He has given evidence that on 22-042005 while the Excise team led by him was on patrol duty, around 6 p.m, he got reliable information that the accused had stored liquor in his provision store for the purpose of sale. PW1 has given further evidence that he proceeded to the shop run by the accused and conducted search therein, and found 7.5 litres of Indian Made Foreign Liquor in 5 bottles. PW1 effected seizure of the contraband substance as per Ext.P6 seizure mahazar. He collected 200 ml of liquor from one of the bottles as sample and sealed the same. 12. PW2, the Excise guard who had accompanied PW1, has given evidence in support of the prosecution.. 13. PWs 3 and 4, the independent witnesses examined to prove the search and seizure, did not support the prosecution case. PW5, the Excise Range Inspector, Kunnamkulam received the articles seized and the contemporaneous documents prepared at the scene of occurrence. The accused was also produced before PW5. PW5 has given evidence that he prepared Ext.P9 Crime and Occurrence report on the basis of the documents produced by PW1 and produced the Crl.A No.2206 of 2008 6 articles seized from the possession of the accused before the court as per Ext.P10 property list. 14. PW6, the local Village Officer who had prepared Ext.P3 sketch, was examined to prove the place of occurrence. PW7, the Secretary of the Kunnamkulam Municipality, was examined to establish the trade licence issued in respect of the shop from which the contraband substance was recovered. The ownership in respect of the building was proved through PW8, the Revenue Officer concerned. PW9 conducted investigation and submitted final report. 15. The learned counsel for the appellant/accused submitted that the prosecution failed to prove that the contraband substance allegedly drawn from the bulk quantity of the liquor seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant submitted that the prosecution failed to establish the link evidence to connect the accused with the contraband substance. 16. PW1, the detecting officer and PW2, the preventive officer Crl.A No.2206 of 2008 7 who had accompanied PW1 in the search and seizure, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. 17. The specimen impression of the seal affixed on the bottle containing the sample had not been produced before the court. Exhibit P12, the copy of the forwarding note, is silent regarding the specimen of the seal used by the detecting officer. 18. When 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 and to ensure that the sample seal, so provided, was tallying with the seal affixed on the sample bottle no evidentiary value can be given to the chemical analysis report (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 19. In the instant case, since no evidence has been placed before the court to convince that the specimen seal or specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be attached to Ext.P16 chemical analysis Crl.A No.2206 of 2008 8 report. 20. As mentioned afore, Ext.P12, the copy of the forwarding note, does not contain the specimen impression of the seal. The copy of the forwarding note is also silent with regard to the name of the person with whom the sample was sent for analysis. Exhibit P16 certificate of chemical analysis shows that the sample was received in the laboratory through Excise guard Sri.K.J.Lonappan on 21-05-2005. The space meant for writing the name of the Excise guard with whom the sample was sent remained vacant in Ext.P12, the copy of the forwarding note. The learned Magistrate has not even initialled in Ext.P12. There is no evidence to show the date on which the sample was forwarded to the Chemical Examiner' laboratory. Exhibit P16 certificate of chemical analysis refers to a letter dated 19-05-2005 of the Judicial First Class Magistrate, Kunnamkulam by which the sample bottle was forwarded to the laboratory. This Court is in the dark as to who received the bottle containing the sample from the court concerned and on which date. Exhibit P6 would show that the sample bottle, forwarded on 19-05-2005, reached the laboratory only Crl.A No.2206 of 2008 9 ## on 21-05-2005. While dealing with a similar fact situation this 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 the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ ## 21. In the instant case the prosecution ought to have examined the thondi clerk of the court or the Excise official who received the Crl.A No.2206 of 2008 10 bottle from the court to prove the tamper proof despatch of the sample to the laboratory. 22. It has come out in evidence that the sample changed several hands like, the thondi clerk of the court, the Excise official who received the sample from the court and the Excise guard who delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined to establish the tamper proof despatch of the sample from the court concerned to the laboratory. Resultantly, this Court comes to the conclusion that the prosecution failed to establish the link evidence to prove the tamper proof handling of the sample. 23. 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. 24. 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 Crl.A No.2206 of 2008 11 drawn from the bulk quantity of the alleged 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]}. 25. 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 absence of link evidence as discussed above. 26. The upshot of the above discussion is that conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offences punishable under section 63 read with section 13 and section 55(i) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS