Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 CRL.A NO. 2330 OF 2008** **AGAINST THE JUDGMENT IN SC 328/2007 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THODUPUZHA, IDUKKI** **APPELLANT/ACCUSED:** **BABU, S/O.BHASKARAN CHAVACHERIL HOUSE, ANAKKARA VILLAGE, UDUMBANCHOLA TALUK.** BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** BY PUBLIC PROSECUTOR SRI.M.S.BREEZ THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2330 of 2008 2 ## **K.BABU, J.** **========================= Crl.A No.2330 of 2008** **==========================** Dated this the 7[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 28.8.2008, passed by the Additional Sessions Judge (Adhoc) II, Thodupuzha, in S.C.No.328/2007, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 9.12.2006 at 6.30 pm., near the water tank at Kurisuthotty, the accused was found carrying 3.5 litres of arrack in a can in violation of the provisions of the Abkari Act. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nedumkandam. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court (Adhoc) II, Thodupuzha. On appearance of the accused charge was framed against him for the offence Crl.A No.2330 of 2008 3 punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6 and MOs 1 and 2. 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-. 7. Heard Sri.C.M.Tomy, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended that the prosecution failed to establish that the articles said to have been seized from the possession of the accused eventually reached the Crl.A No.2330 of 2008 4 hands of Public Analyst at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 11. PW3, the Preventive Officer, Excise Range Office, Kattappana detected the offence. He gave evidence that on the date of occurrence the accused was found in possession of a plastic can which contained 3.5 litres of arrack. According to him, on seeing the excise party, the accused abandoned the can and a glass tumbler at the place of occurrence. PW3 deposed that he seized the articles abandoned by the accused by way of Ext.P1 seizure mahazar. He collected sample in a bottle and was sealed. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW4, the Excise Inspector, Excise Range Office, Kattappana conducted investigation. 12. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance Crl.A No.2330 of 2008 5 allegedly recovered from the place of occurrence ultimately reached the hands of public analyst for the following reasons: a) PW3, the detecting officer, the only witness to prove the incident proper, has not given evidence as to the nature and description of the seal affixed on the sample. b) Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure, does not contain the narration as to the nature and description of the seal. c) Ext.P5, the copy of the forwarding note, is silent with regard to the name of the person with whom the sample was sent for analysis and it lacked the date on which the learned Magistrate put his initial. 13. I have gone through the depositions of the witnesses and Ext.P1 seizure mahazar. PW3, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, does not contain the specimen of the seal stated to have been affixed on the sample. 14. In **Bhaskaran v. State of Kerala and another** Crl.A No.2330 of 2008 6 **(2020 KHC 5296)** , while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: “21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle 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 bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found 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 without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied) ## 15. In **Krishnadas v. State of Kerala (2019 KHC** ## **191)** this Court held thus: “7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 Crl.A No.2330 of 2008 7 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied) 16. Ext.P5 is the copy of the forwarding note, whereby the sample bottle was forwarded to the Chemical Examiner. Ext.P6, certificate of chemical analysis, would show that the sample was delivered to the laboratory through Excise Guard by name M.C.Jayaraj on 12.12.2006. It is not discernible as to why the space meant for writing the name of Excise Guard in Ext.P5, with whom the sample was sent, remained vacant. The learned Magistrate though put his initial on Ext.P5, he failed to write the date on which he made the initial. 17. The learned counsel for the appellant relied on **Kumaran v. State of Kerala (2016(4) KLT 718)** to contend that this infirmity would lead to the conclusion that the prosecution failed to establish that the sample bottle was sent to the laboratory in a tamper proof condition and hence the accused is entitled to benefit of doubt. Crl.A No.2330 of 2008 8 ## 18. In **Kumaran v. State of Kerala (supra)** this Court 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 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 the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 19. The non mention of the name of the person, with whom the sample was sent to the Chemical Examiner's laboratory, in the Crl.A No.2330 of 2008 9 column meant to it and the absence of the date on which the learned Magistrate affixed his initial, it was imperative for the prosecution to examine the Thondi Clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. 20. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 21. 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 drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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. **(vide: State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Sasidharan v. State of Kerala [2007(1) KHC 275], Sathi v. State of Kerala (2007(1)** Crl.A No.2330 of 2008 10 ## **KHC 778)** 22. The upshot of the above discussion is that the prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused reached the hands of the Analyst at the Chemical Examiner's laboratory. In the above circumstance no evidentiary value can be attached to Ext.P6, Certificate of Chemical Analysis. 23. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. The 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 offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. Sd/- **K. BABU JUDGE** ab