Baby W/o Krishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **CRL.A NO. 2445 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1068/2006 OF ADDITIONAL** **SESSIONS COURT (ADHOC)-II, KOZHIKODE** ## **APPELLANT/S:** **BABY W/O.KRISHNAN, CHERUTHADATHIL, THAZHEKODU AMSOM, KOZHIKODE.** **BY ADVS. SRI.R.BINDU (SASTHAMANGALAM) SRI.PRASANTH M.P** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **CRL.A NO. 2445 OF 2008** -2- ## **K. BABU, J.** ## **====================== Crl.A No.2445/2008** **====================== Dated this the 5[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated 3.10.2008 passed by the Additional Sessions Court Fast Track (Adhoc-II), Kozhikode, in SC No.1063/2006, 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 19.02.2005 at 6.15 p.m., the accused was found carrying 1½ litres of illicit arrack** ## **CRL.A NO. 2445 OF 2008** -3- **in a can on the public road at Thazhekkode in Kozhikode Taluk.** **4. The Excise Inspector, Kunnamangalam Range, after completion of the** **investigation, submitted final report against the accused alleging offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Thamarassery. The case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court. On appearance of the accused, charge was framed against her for the offence under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, she came to be tried by the** ## **CRL.A NO. 2445 OF 2008** -4- **learned Additional Sessions Judge for the aforesaid offence.** **5. The prosecution examined PWs 1 to** **5 and proved Exts.P1 to P5 and MO1.** **6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence she was called upon to enter on her defence and to adduce the evidence, if any, she may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, passed the impugned** ## **CRL.A NO. 2445 OF 2008** -5- ## **judgment.** **7. Heard Sri.R.Bindu Sasthamangalam, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents.** **8. The learned counsel for the appellant submitted that there is absolutely no evidence to establish that the** **was the appellant/accused carrying** **contraband substance as alleged by the prosecution. The learned counsel further contended that the prosecution miserably failed to establish that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical** ## **CRL.A NO. 2445 OF 2008** -6- **Examiner's laboratory.** **9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.** **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. PW1, the Excise Preventive Officer, Kunnamangalam Range detected the offence. He gave evidence that on 19.02.2005 at 6.15 p.m., the accused was found carrying a can containing illicit arrack through the public road at Thazhekkode in Kozhikode** ## **CRL.A NO. 2445 OF 2008** -7- **Taluk towards Vattoliparambu. PW1 deposed that he seized the can from the possession of the accused and found that it contained illicit arrack. He drew 180 ml of arrack from the can as sample and sealed the sample bottle as well as the can containing residue of the liquor. According to PW1, as no woman constable was available, the accused could not be arrested. PW1 entrusted the thondi articles with PW5, another Excise Preventive Officer, who was in charge of the Excise Inspector. PW2, the Excise Guard, who had accompanied PW1, supported the version of PW1. PWs3 and 4, the independent witnesses, did not support the prosecution version that the accused was found in possession of the** ## **CRL.A NO. 2445 OF 2008** -8- ## **illicit arack as alleged.** **12. The learned counsel for the accused contended that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance. PWs1 and 2, the official witnesses, gave evidence that the accused was not arrested from the scene. PW1 further stated that no attempt was made to arrest the accused later. The Excise Inspector, Kunnamangalam Range, who conducted the investigation also made no attempt to arrest the accused. 13. It is pertinent to note that none of the witnesses identified the accused in the court. It is well settled that the** ## **CRL.A NO. 2445 OF 2008** -9- **substantive piece of evidence of** **identification of an accused is the evidence given by the witness during trial. It is common ground that the official witnesses who supported the prosecution had no previous acquaintance with the accused. Where a witness identifies an accused, who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation (vide: Jameel v. State of Maharashtra [AIR 2007 (SC) 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], Kanan and Others v. State of Kerala (AIR 1979 (SC) 1127),** ## **CRL.A NO. 2445 OF 2008** -10- **State (Delhi Administration) v. V.C. Shukla and another [AIR 1980 (SC) 1382], Mohanlal Gangaram Gehani v. State of Maharashtra [AIR 1982 (SC) 839], Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367].** **14. The resultant conclusion is that the prosecution failed to establish that the accused had possessed the contraband substance as alleged at the scene of** **occurrence.** **15. The learned counsel for the appellant/accused further contented that there is no material to show that the thondi articles including the bottle containing the** ## **CRL.A NO. 2445 OF 2008** -11- **sample were produced before the court. The property list has not been produced and marked in evidence. Ext.P3 is the copy of the forwarding note prepared by the Excise Inspector, Kunnamangalam on 19.02.2005. Ext.P3 is silent as to the date on which it was produced before the court. Though the learned Magistrate has countersigned in Ext.P3, he has not written the date on which the initial was made. Ext.P4, the certificate of chemical analysis, refers to a letter sent by the Judicial First Class Magistrate Court-II, Thamarassery, which is dated 'Nil'. This Court is in dark as to the date on which the thondi articles, including the sample, were received by the** ## **CRL.A NO. 2445 OF 2008** -12- **court and the date on which the sample was handed over to the person who delivered the same to the Chemical Examiner's laboratory. The learned Magistrate was expected to write the date on which he put the initial in Ext.P3 copy of the forwarding note in cases of this nature. It was imperative on the part of the prosecution to establish the date on which the thondi articles including the sample were produced before the court, and the date on which the sample was collected from the court to be delivered to the laboratory. The prosecution ought to have examined the Thondi Clerk and the Excise Guard who delivered the sample at the laboratory. (Vide: Kumaran v. State of** ## **CRL.A NO. 2445 OF 2008** -13- ## **Kerala [2016(4) KLT 718).** **16. 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. The Apex Court further held that the sample seized and tested have to be co-related.** **17. In the instant case, the** **prosecution failed to prove 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 possessed by the accused.** ## **CRL.A NO. 2445 OF 2008** -14- **Relying on State of Rajasthan v. Daulat Ram [(1980) 3 (SCC) 303] this Court in Sathi v. State of Kerala [2007(1) KHC 778] held that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analyed 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 possessed by the accused.** **18. As the trial court has not properly considered the above said vital aspects while appreciating the prosecution evidence, the conviction entered against the accused cannot be sustained.** **In the result, this appeal is allowed.** **CRL.A NO. 2445 OF 2008** # **The accused is acquitted of the offence punishable under Section 8(2) of the Abkari Act. The accused is set at liberty.** Sd/-/- **K. BABU, JUDGE** STK