Chandran P.P. s/o Padmanabhan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 CRL.A NO. 2250 OF 2008** **AGAINST THE JUDGMENT DATED 25.09.2008 IN SC.NO.535/2006 OF ADDITIONAL SESSIONS (ADHOC) FAST TRACK COURT-III,** **PATHANAMTHITTA** **APPELLANT/ACCUSED:** **CHANDRAN P.P. S/O.PADMANABHAN, BLOCK NO-75, EZHIKKADU HARIJAN COLONY, KURICHIMUTTAM KARA, KIDANGANNUR VILLAGE, PATHANAMTHITTA.** **BY ADV SRI.AJITH MURALI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2250 OF 2008** 2 ## **K. BABU J.** **------------------------------------** **Crl.A.No.2250 of 2008** **------------------------------------** Dated this the 4[th] day of August, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 25.09.2008, passed by the Additional Sessions (Adhoc), Fast Track Court-III, Pathanamthitta in S.C.No.535/2006, 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 18.01.1999 at about 06.15 p.m., the accused was found in possession of 750 ml of arrack in a 750 ml bottle on the KidangannurChengannur PWD road. The offence was detected by the Excise Preventive Officer in charge of the Excise Inspector, Excise Range Office, Pathanamthitta. 4. After completion of investigation final report was submitted against the accused for the offence **CRL.A NO. 2250 OF 2008** **==> picture [7 x 9] intentionally omitted <==** punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-I, Pathanamthitta. 5. The case was committed to the Sessions Court, Pathanamthitta, from where it was made over to the Trial Court. On appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs.1 to 7, Exts.P1 to P7 and MO.1. 7. 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 innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was 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. **CRL.A NO. 2250 OF 2008** 4 The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.Ajith Murali, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The counsel for the appellant/accused contended that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory so as to conclude that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. The only point that arises for consideration is **CRL.A NO. 2250 OF 2008** **==> picture [7 x 9] intentionally omitted <==** whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 12. PW2, the Excise Preventive Officer in charge of the Excise Inspector, Excise Range Office, Pathanamthitta on 18.09.1999 found the accused carrying a plastic bottle through the Kidangannur-Chengannur PWD road. PW2 has given evidence that after ascertaining that the bottle in the possession of the accused contained illicit attack, the same was seized as per Ext.P3 seizure mahazar. The accused was arrested from the spot. PW3, who was in the Excise team led by PW2, supported the prosecution case. 13. PWs.6 and 7, the independent witnesses, did not support the case of the prosecution regarding the seizure and arrest. PW4 registered Ext.P4 Crime and Occurrence report. 14. PW1, the property clerk of the Judicial First Class Magistrate Court-I, Pathanamthitta, has given evidence that the property was produced before the court **CRL.A NO. 2250 OF 2008** **==> picture [7 x 9] intentionally omitted <==** on 19.01.1999. He further deposed that he had taken sample from MO1 and sent the same through Sri.Rajan, an Excise Guard. PW5 conducted investigation and submitted final report before the Court against the accused. 15. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory: - (a) PW2, the detecting officer, has not given evidence as to the nature and description of the seal that he affixed on MO1 bottle at the time of seizure. - (b) Ext.P3 seizure mahazar, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (c) There is no evidence to show that the specimen **CRL.A NO. 2250 OF 2008** **==> picture [7 x 9] intentionally omitted <==** impression of the seal affixed on MO1 bottle by the detecting officer was produced before the court so as to ensure the genuineness of the contraband substance produced before the court. - (d) The prosecution failed to establish that the specimen impression of the seal affixed on the bottle containing the sample was provided to the Chemical Examiner's laboratory. - (e) There is no satisfactory explanation for the - delay in the analysis of the sample at the Chemical Examiner's laboratory. 16. The prosecution case is that the accused was found in possession of 750 ml of illicit arrack in a 750 ml bottle. According to PW2 immediately after seizure of the bottle from the possession of the accused he had sealed the bottle. PW2 has not given evidence as to the nature and description of the seal affixed on MO1 bottle. The specimen impression of the seal used by the detecting officer (PW2) to seal MO1 bottle at the scene of **CRL.A NO. 2250 OF 2008** 8 occurrence was not produced before the court. 17. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and **Krishnadas v. State of Kerala** (2019 KHC 191), this Court held that the detecting officer 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. 18. In the instant case, Ext.P3, seizure mahazar, does not contain the nature and description of the seal stated to have been affixed on MO1 bottle by the detecting officer. Neither PW2 nor PW3 has given evidence as to nature of the seal used at the scene of occurrence. 19. In the instant case, admittedly, no sample was drawn by the detecting officer at the scene of occurrence. PW1, the property clerk of the court, gave evidence that he had taken sample from the contraband substance produced before the court. PW1 further gave evidence that the sample was forwarded to the Chemical Examiner's laboratory on 21.05.1999, but the said date **CRL.A NO. 2250 OF 2008** 9 was not recorded in any of the contemporaneous documents prepared. It is important to note that there is nothing to show that any record was prepared in the court concerned evidencing any direction given by the Magistrate to take a specified measure of the sample from the contraband substance produced. PW1 has not given evidence as to the date on which the sample was drawn. It is pertinent to note that PW1 has not given evidence as to whether the specimen impression of the seal affixed on the bottle containing the sample was forwarded to the Chemical Examiner's laboratory. There is absolutely no evidence to convince the court that the specimen impression of the seal was provided to the Chemical Examiner for his verification and to ensure that the specimen impression of the seal so provided was tallied with the seal affixed on the bottle containing the sample. 20. In Ext.P7, certificate of chemical analysis, it is stated that the seal on the bottle was intact and **CRL.A NO. 2250 OF 2008** 10 found tallied with sample seal provided. In the absence of any evidence to show that the specimen impression of the seal affixed on the bottle containing the sample was provided to the Chemical Examiner's laboratory, the certification regarding the seal on the bottle in Ext.P7 cannot be accepted and no evidentiary value can be attached to Ext.P7. PW1 admitted that no entry was made in any of the relevant documents to ascertain the date on which the sample was forwarded to the Chemical Examiner's laboratory. The covering letter referred to in Ext.P7 is undated. The evidence given by PW1, almost 9 years after the date on which the sample was forwarded, that the sample was forwarded to the laboratory on 21.05.1999, without even referring to any contemporaneous document, is not credible. 21. The inevitable conclusion is that this Court is in the dark as to the date on which the sample was handed over to the Excise Guard who delivered the same to the Chemical Examiner's laboratory. It is also important to **CRL.A NO. 2250 OF 2008** **==> picture [13 x 9] intentionally omitted <==** note that there is no convincing evidence to show that the sample was sealed in the court. 22. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that in the absence of convincing evidence as to the production of the specimen impression of the seal to the Chemical Examiner, no evidentiary vale can be attached to the Chemical analysis report. 23. Ext.P7, the certificate of chemical analysis, would show that the sample reached the Chemical Examiner's laboratory on 21.05.1999, but the same was analysised only on 25.04.2000. 24. The learned counsel for the appellant contended that the delay in analysis of the sample, which has not been explained satisfactorily, is also fatal to the prosecution. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter **CRL.A NO. 2250 OF 2008** 12 dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 25. In the instant case, the delay of almost one year in the analysis of the sample remains unexplained. 26. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 27. It is settled that 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 drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. **CRL.A NO. 2250 OF 2008** 13 28. 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 benefit of doubt arising from the absence of link evidence as discussed above. 29. 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 offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS