Biju S/o Haridas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 22ND DAY OF MAY 2020 / 1ST JYAISHTA, 1942** ## **Crl.Rev.Pet.No.270 OF 2008** **AGAINST THE JUDGMENT IN CRA 305/2007 DATED 27-11-2007 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA** **AGAINST THE JUDGMENT IN SC 618/2005 DATED 26-03-2007 OF ADDITIONAL SUB COURT, ALAPPUZHA** ## **REVISION PETITIONER/APPELLANT/ACCUSED:** ## **BIJU** **S/O.HARIDAS, CHEKKETHALA HOUSE, PUNNAPRA VILLAGE, AMBALAPPUZHA, ALAPPUZHA.** **BY ADV. SRI.S.SANAL KUMAR** ## **RESPONDENTS/RESPONDENTS/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY ADV. PUBLIC PROSECUTOR C.K.PRASAD** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 22.05.2020, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Crl.Rev.Pet.No.270 OF 2008** **2** ## **R. NARAYANA PISHARADI, J** **--------------------------------------------Crl.R.P No. 270 of 2008 ---------------------------------------------** Dated this the 22[nd] day of May, 2020 ## **O R D E R** The revision petitioner is the accused in the case S.C No. 618/2005 on the file of the Court of the Additional Assistant Sessions Judge, Alappuzha. 2. Concurrent verdicts of guilty, conviction and sentence entered against the petitioner by the trial court and the appellate court for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act, 1077 are being assailed in this revision petition. 3. The prosecution case is that, on 20.08.2003, at about 18:30 hours, PW1 Excise Inspector found the petitioner with MO1 bottle containing 1.500 litres of arrack in his possession, at the side of the bridge near house No.VI/78 of Punnapra Grama Panchayath. 4. The trial court framed charge against the petitioner for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The petitioner pleaded not guilty and claimed to be tried. **Crl.Rev.Pet.No.270 OF 2008** **3** Thereupon, the prosecution examined PW1 to PW5 and marked Exts.P1 to P5 documents and material object MO1. No evidence was adduced by the petitioner/accused. 5. The trial court found the petitioner guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of one year and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. The petitioner filed Crl.A.No. 305/2007 before the Court of Session, Alappuzha challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. 7. The concurrent verdicts of guilty, conviction and sentence made against him by the courts below are challenged by the petitioner in this revision petition. 8. Heard. Perused the records. 9. PW1 is the Excise Inspector who detected the offence. PW2 is the Preventive Officer who was in the excise party led by PW1. They gave evidence regarding the occurrence in detail. **Crl.Rev.Pet.No.270 OF 2008** **4** 10. The evidence of PW1 and PW2 would show that the excise party apprehended the petitioner and found in his possession MO1 bottle containing some liquid. While the excise party was examining the contents of the bottle, the petitioner escaped from the spot. 11. The fact that the independent witness, who was examined as PW3, did not support the prosecution case is not a sufficient ground to disbelieve the evidence of PW1 and PW2 regarding the seizure of MO1 bottle containing some liquid from the possession of the petitioner as per Ext.P1 mahazar. 12. Ext.P5 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that ethyl alcohol was detected in the sample. 13. The fact that MO1 bottle containing some liquid was seized from the possession of the petitioner and that the report of chemical analysis showed that the sample sent from the court contained ethyl alcohol does not prove that the petitioner/accused had possessed any liquor or arrack. In order to establish the prosecution case against the petitioner/accused it is necessary to prove that the very same sample which was drawn from the liquid seized from his possession was forwarded to the laboratory for examination. **Crl.Rev.Pet.No.270 OF 2008** **5** 14. The prosecution, in a case of this nature, can succeed only if it is shown that the sample of liquid which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the liquid or material found in the possession of the accused (See **Ravi v. State of Kerala: 2011 (3) KHC 121: 2011 (3) KLT 353** ). 15. Mere seizure of an article or material alone is not sufficient to prove that the accused had committed the offence. The link between the accused and the alleged contraband article has to be established by the prosecution. It has to be established that the chemical analysis report relates to the representative sample said to have been taken from the contraband material seized from the possession of the accused (See **Harijan Pala v. State of Kerala : 2015 KHC 997** ). 16. The aforesaid principles also get support from the decision of the Supreme Court in **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569,** wherein it has been held as follows: **Crl.Rev.Pet.No.270 OF 2008** **6** “The failure of the prosecution in the present case to relate the seized 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”. 17. In the instant case, PW4 Excise Inspector, who registered the case against the petitioner, has given evidence that report was submitted to the court to send the sample for chemical analysis. However, the copy of the forwarding note was not marked and admitted in evidence. Therefore, there is no assurance that the very same sample drawn from the liquid seized from the possession of the accused was sent for analysis and that the chemical analysis report relates to the liquid seized from the possession of the accused. 18. In the absence of specimen impression of the seal used for sealing the article having been produced in court and in the absence of producing and marking the forwarding note which is expected to contain such specimen impression of the seal, which enables the chemical examiner to verify and satisfy regarding the genuineness of the sample produced for examination, it cannot be found that the prosecution has proved beyond reasonable doubt that the article was produced in court in the same condition in which it was seized and it **Crl.Rev.Pet.No.270 OF 2008** **7** reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the liquid or material seized from the possession of the accused. If this is not proved to the satisfaction of the court, then it cannot be said that the prosecution has succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused (See **Prakasan v. State of Kerala : 2016 KHC 96, Gopalan v. State of Kerala : 2016 KHC 541** and **Gireesh v. State of Kerala : 2019 (4) KLT 79** ). 19. The above mentioned aspects have not been considered by the trial court and the appellate court while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the petitioner/accused by the trial court, which stands affirmed by the appellate court, cannot be sustained. The petitioner/accused is entitled to be acquitted. 20. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner is found not guilty of the aforesaid offence **Crl.Rev.Pet.No.270 OF 2008** **8** and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. **Sd/- R. NARAYANA PISHARADI JUDGE** lsn