Bhuvanachandran @ Ponnappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **CRL.A NO. 724 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 12/2006 OF SPECIAL COURT (NDPS** **ACT CASES), THODUPUZHA, IDUKKI** ## **APPELLANT/ACCUSED:** BHUVANACHANDRAN @ PONNAPPAN S/O.PRABHAKARAN, KELAMTHARA HOUSE,, NALUMUKKU BHAGOM, KOTTOOR KARA, KARUNAPURAM VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P.) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.724 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.724 of 2007** --------------------------------------Dated this the 29[th] day of June, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 27-03-2007, passed by the Additional Sessions Court (NDPS Act cases), Thodupuzha in Sessions Case No.12/2006, the accused has preferred this appeal. The learned trial court convicted the appellant for the offences punishable under Sections 55(a) and 8(2) of the Kerala Abkari Act. 2. Facts: On 21-12-2004 at 6.10 p.m., the appellant was found in possession of 1500 ml. of arrack in a bottle having a capacity of 2 litres and a glass tumbler at Nalumukku. He was arrested by the S.I of Police, Cumbummettu Police Station. The police seized the contraband substance from the possession of the accused. After the completion of investigation, final report was submitted against the accused by the Sub Inspector of Police, Cumbummettu for offences punishable under Sections 55(a) and 8(2) of the Kerala Abkari Act before the JFCM, Nedumkandam. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court, Thodupuzha. On appearance of the Crl.Appeal No.724 of 2007 3 accused, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Kerala Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offences. 3. The prosecution examined PW1 to PW4 and proved Exts.P1 to P8 and MOs1 to 3. 4. 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 total 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 convicted the accused under Sections 55(a) and 8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for 1 year and to pay fine of Rs.1 Lakh. 5. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband article allegedly seized from the place of occurrence ultimately reached the hands of 4 Crl.Appeal No.724 of 2007 the Chemical Analyst. 6. The learned Public Prosecutor, per contra, resisted the contentions of the learned counsel for the appellant and submitted that all procedural formalities have been properly complied with and the prosecution successfully established the charges against the accused beyond all reasonable doubt. 7. The only point that arises for consideration is whether the conviction entered and the sentence passed against the appellant/accused, are sustainable or not. ## **The Point** 8. PW3, the Sub Inspector of Police, Cumbummettu Police Station, Idukki detected the offence. On 21-12-2004 at Nalumukk Kottar, in Karunapuram Village the accused was found in possession of 1500 ml. of illicit arrack. He was also possessing a glass tumbler. After ascertaining that the liquid contained in the bottle possessed by the accused was illicit arrack, he was arrested from the spot. The articles in his possession were seized. PW3 prepared Ext.P1 seizure mahazar in the presence of independent witnesses. PW3 sealed the contraband substance. On the basis of Ext.P1 seizure mahazar PW3 registered Ext.P5 F.I.R. The accused was produced before the 5 Crl.Appeal No.724 of 2007 Magistrate's Court concerned along with the material objects seized from the scene of occurrence. PW3 prepared Ext.P7 forwarding note requesting to send the sample collected to the laboratory. PW4, the Sub Inspector of Police conducted the investigation and submitted final report before the court on 03-09-2005. 9. PWs 1 and 2, the independent witnesses, did not support the prosecution case. They denied to have affixed their signature in Ext.P1 seizure mahazar. 10. The learned counsel for the appellant mainly canvassed the ground that the prosecution miserably failed to establish that the arrack allegedly seized from the place of occurrence ultimately reached the hands of the Analyst. The learned counsel relied on the following circumstances to substantiate his contentions. - (a) The detecting officer (PW3) has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Exhibit P1 seizure mahazar is silent regarding the nature and description of the seal affixed on the bottle containing the sample. 11. I have gone through the depositions of PW3 and Ext.P1 6 Crl.Appeal No.724 of 2007 seizure mahazar. The detecting officer (PW3) has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Exhibit P1 seizure mahazar is silent regarding the nature and description of the seal affixed on the bottle containing the sample. 12. In _**Bhaskaran K. v. State of Kerala and another**_ (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_ 7 Crl.Appeal No.724 of 2007 _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)_ ## 13. 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 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)_ ## 14. Exhibit P7 shows that the bottle containing the sample was handed over to a police constable by name C.J.Raju (P.C 1571). In Ext.P7, though the learned Magistrate has affixed his signature, he has not specified the date on which he affixed his signature. This Court is in the dark as to the date on which the sample was handed over to the police official, who was entrusted to deliver the same to the Analyst. This is highly relevant in view of the specific challenge of the accused that the prosecution failed to establish that the sample 8 Crl.Appeal No.724 of 2007 reached the hands of the Analyst in tamper proof condition. 15. Admittedly, the sample changed several hands before it reached the Public Analyst. Neither the thondi clerk nor the police constable who delivered the sample to the Public Analyst was examined to establish that while in their custody the seals were not tampered with. 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 allegedly 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]}. 16. The resultant conclusion is that, the conviction entered and the sentence passed against the accused are not sustainable. The accused is acquitted of the charges. He is set at liberty. If any amount is deposited by the accused as per the interim orders of this Court, it shall be disbursed to the accused in accordance with law. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS