Balakrishnan @ Podiyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 CRL.A NO. 856 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 477/2002 OF ADDITIONAL DISTRICT COURT, FAST TRACK (ADHOC), MAVELIKKARA APPELLANT/ACCUSED:** BALAKRISHNAN @ PODIYAN AGED 56 YEARS, S/O.KUNJUKUNJU, KALABHAVANAM, MUTHUKKATTUKARA MURI, PALAMEL VILLAGE, MAVELIKARA. BY ADVS. SRI.S.SHANAVAS KHAN SMT.S.INDU ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA. S. (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 856 of 2007 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.856 of 2007 --------------------------------------Dated this the 20[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 25.04.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc), Mavelikara in S.C 477/2002, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offences punishable under Sections 8(2) and 55 (a) of the Abkari Act. 3. The prosecution case is that on 08.03.2001 at 12.45 p.m., the accused was found in possession of 750 ml of arrack at Edappon Josco Hospital junction in Palamel Village in Alappuzha district. 4. 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 Judicial First Class 3 Crl.A No. 856 of 2007 Magistrate Court, Mavelikara. The case was committed to the Sessions Court, Alappuzha from where it was made 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 trail Court for the aforesaid offences. 5. The prosecution examined PWs 1 to 5, and proved Ext.P1 to P8 and MO1. 6. After the 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 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 from both sides, found the accused 4 Crl.A No. 856 of 2007 guilty of the offences under Sections 8(2) and 55(a) of the Abkari Act and convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1 Lakh for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. 7. Heard Smt.S.Indu, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish the charges against the accused. 9. The learned Public Prosecutor, per contra, submitted that the materials are sufficient to establish the charges against the accused. 10. PW1, the Excise Preventive Officer, The Excise Enforcement and Anti-Narcotic Special Squad, Alappuzha, was on patrol duty on 08.03.2001 at 5 Crl.A No. 856 of 2007 12.45.p.m in Palamel village. When the excise team led by PW1 reached the public road near Edappon Josco Hospital junction, the accused was found carrying a bottle. He attempted to escape on seeing the excise team. He was prevented by the excise officials. On inspection, it was found that the accused was carrying 750 ml of arrack in a plastic bottle. The accused was arrested. PW1 prepared Ext.P1 seizure mahazar and seized the contraband substance from the possession of the accused. He prepared Ext.P2 arrest memo and Ext.P3 arrest notice. PW1 collected 200 ml of liquid from the bottle in possession of the accused and sealed the same. PW2, the Preventive Officer, who had accompanied PW1 supported the prosecution case. PW4 registered Crime No.15/2001 under Sections 8(2) and 55(a) of the Abkari Act against the accused. PW5, the Excise Inspector, Mavelikkara Excise Range conducted investigation and submitted the final report. 11. The learned counsel for the appellant 6 Crl.A No. 856 of 2007 submitted that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Court and thereafter the Chemical Examiner's Laboratory. The learned counsel submitted that Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The prosecution failed to produce the specimen of the seal before the Court so as to ensure the genuineness of the sample produced. 12. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held that 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 and the nature of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be produced in the Court so as to enable the Court to Crl.A No. 856 of 2007 7 satisfy the genuineness of the sample produced in the Court. 13. In the instant case, the detecting officer has not given evidence as to the nature of the seal used. Another aspect that requires consideration is that the the prosecution has not produced the forwarding note/requisition for sending sample to the laboratory before the Court. 14. 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. 15. 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 8 Crl.A No. 856 of 2007 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. 16. The certificate of chemical analysis shows that one sealed bottle containing 200 ml of clear and yellow coloured liquid alleged to be arrack reached the laboratory on 14.03.2001 as per letter dated TR.41/2001 dated 08.03.2001. The prosecution has not adduced any evidence as to the date on which the sample was given to the excise guard concerned, who delivered the same to the laboratory. In the absence of any contra evidence, this Court has to come to the inference that the sample was forwarded from the Court on 08.03.2001. However, it reached the laboratory only on 14.03.2021. It was delivered to the laboratory by an Excise Guard by name Krishna Kumar. The delay in the production of Crl.A No. 856 of 2007 9 the sample in the laboratory after the same was obtained from the Court has not been explained by the prosecution. 17. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** (2016 (3) KHC 38) held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 18. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached Crl.A No. 856 of 2007 10 the laboratory in a tamper-proof condition. 19. Strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 20. 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 and other circumstances discussed above. The upshot of the above discussion is that 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 offences punishable under Sections 8(2) and 55(a) of the Abkari Act. He is acquitted of the Crl.A No. 856 of 2007 11 charges. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk