Biju s/o Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **WEDNESDAY, THE 03RD DAY OF JUNE 2020 / 13TH JYAISHTA, 1942** ## **CRL.A.No.1328 OF 2005** **AGAINST THE JUDGMENT IN SC NO.538/2003 DATED 19-07-2005 OF THE COURT OF THE ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK COURT-1, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **BIJU** **S/O BABU,POTTENMALA PADINJARE CHARUVIL VEEDU, ULLANOOR MURI, KULANADA, NOW RESIDING AT RAJANI VILASOM,PONGALADI MURI, PANDALAM THEKKEKARA VILLAGE, ADOOR TALUK.** **BY ADV. SRI.C.K.SAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SRI.SANTHOSH PETER, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 03.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.1328 OF 2005 2** ## **JUDGMENT** **Dated this the 3rd day of June, 2020** ... **The above appeal is filed by the accused in Sessions Case No. 538 of 2003 on the file of the Additional District & Sessions Judge (Adhoc) Fast Track Court-1, Pathanamthitta.** **2. The accused is charge sheeted by the Excise Inspector, Adoor alleging offences punishable under Sections 55 (a), 8(1) & (2) of the Abkari Act. The Prosecution case is that, on 06.10.2000 at 5.45 p.m., the Excise Inspector and party of Adoor Excise Range were on patrol duty. They found the accused carrying a cannas with a capacity of 10 litres in his right hand and proceeding towards them through the Panchayat road at Pongaladi Muri. On suspicion, the accused intercepted and the cannas was taken and inspected. It is alleged that, the cannas contained** **CRL.APPEAL NO.1328 OF 2005 3** **1 ½ litres of arrack. Hence, it is alleged that, the accused committed the offence.** **3. To substantiate the case, the Prosecution examined PWs. 1 to 5. Exhibits P1 to P10 are the exhibits. MO1 is the material object. On going through the evidences and documents, the trial court found that, the accused committed the offence under Sections 8(1)&(2) of the Abkari Act. He is sentenced to undergo Rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo simple imprisonment for a period of two years more. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.** **4. The counsel for the appellant submitted that, the Prosecution miserably failed to prove the case against the accused. According to him, the search and seizure itself is doubtful because, there is no independent witness to corroborate the search and seizure. The independent witness, even denied the signature in Ext.P1 mahazar, the counsel** **CRL.APPEAL NO.1328 OF 2005 4** **contended. Moreover, according to the counsel, in the forwarding note, there is no seal and hence, the prosecution has not proved, all the links starting from the seizure of the contraband, till it reaches in the hands of the Analyst.** **5. The learned Public Prosecutor supported the judgment of the lower court. According to the Public Prosecutor, in the light of the oral and documentary evidences adduced by the Prosecution, an offence under Sections 8(1)&(2) of the Abkari Act is made out.** **6. The point to be decided whether the accused committed the offence punishable under Sections 8(1)&(2) of the Abkari Act and whether the conviction and sentence imposed by the trial court is sustainable in the light of the facts and circumstances of the case.** **7. It is a settled position that, in Abkari cases, the Prosecution can succeed only if the Prosecution proved all the links starting from the seizure of the contraband, till it reaches in the** **CRL.APPEAL NO.1328 OF 2005 5** ## **hands of Analyst. In Madhavan v. State of Kerala** ## **[2019 (4) KLT 18], this Court held like this:** _**“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner.**_ _**20. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related (See Vijay Pandey v. State of Uttar Pradesh (2019(3) KLT OnLine 3028 (SC) = 2019 (10) SCALE 129).”**_ ## **In Gireesh v. State of Kerala [2019 (4) KLT 79], this Court observed like this:** _**“15. When the prosecution relies upon report of chemical analysis in respect of the**_ **CRL.APPEAL NO.1328 OF 2005 6** _**samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reaches the hands of the chemical examiner.**_ _**16. The aforesaid view has been taken by this Court in a catena of decisions (See Ravi v. State of Kerala (2011(3) KLT 353),Joseph v. State of Kerala (2009(3) KLT SN 28 (C.No.30) = 2009 (4) KHC 537), Sathi v. State of Kerala (2007(1) KLT SN 57 (C.No.82) = 2007(1) KHC 778) and Sasidharan v. State of Kerala (2007(1) KLT 720). Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Dault Ram (1980 KLT OnLine 1025 (SC) = AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC) = AIR 1994 SC 117).**_ _**17. The principles mentioned above get support also from the very recent decision of the Supreme Court in Vijay Pandey v. State of Uttar Pradesh : 2019 (3) KLT OnLine 3028 (SC) = 2019 (10) SCALE 129) (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019), wherein it has been held as follows:**_ _**“The failure of the prosecution in the**_ **CRL.APPEAL NO.1328 OF 2005 7** _**present case to relate the seizure sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related.” (emphasis supplied)**_ **This Court also observed the importance of marking of the forwarding note in Abakari matters in** _**Vijayan @ Pattalam Vijayan and Anr. v. State of Kerala [2018(2) KHC 814] and Prakasan and Anr. v. State of Kerala [2016 KHC 96].**_ **8. In this case, the prosecution produced the forwarding note as Ext.P6. In Ext.P6, the space for sample seal is blank. Column No.10 of Ext.P6 says about the space for sample seal. The forwarding note is a letter from Excise Inspector to the Chemical Examiner. Unless the sample seal is seen, the Chemical Examiner may not be able to identify the property. Of course, the Chemical Examiner in his report stated that, he verified the sample with the** **CRL.APPEAL NO.1328 OF 2005 8** **seal. But the Court is handicapped as to how the Chemical Examiner identified the property with the seal, especially when there is no seal affixed in Ext.P6 forwarding note. Therefore, in this case, the** **prosecution miserably failed to prove the links starting from the seizure of contraband article till it reaches in the hands of the Analyst. For this reason itself, the accused is entitled to the benefit of doubt.** **9. In addition to that, the independent witness in this case, not only turned hostile to the prosecution, they even disputed their signature in Ext.P1 which is a contemporaneous record to show that, there was search and seizure. This will also create doubt about the search and seizure. It is true that, simply because, the independent witness turned hostile, if there is any oral evidence from** **the official witnesses, the accused can be convicted. But in this case, the accused is disputing the search and seizure. In such circumstances, the deposition of the independent** **CRL.APPEAL NO.1328 OF 2005 9** **witnesses that, they have not even signed in the mahazar have got some importance, I think, the benefit of doubt will go to the accused.** **10. Hence, in the light of the facts and circumstances of the case mentioned above, the accused is entitled to the benefit of doubt.** **Therefore, this appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 19.07.2005 in Sessions Case No.538 of 2003 on the file of the Additional District & Sessions Judge (Ad-hoc) Fast Track Court-1, Pathanamthitta is set aside. The accused is set at liberty. Bail bond, if any, executed by the accused, is cancelled.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**