Chandran s/o. Kelan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **CRL.A NO. 2304 OF 2007** **AGAINST THE JUDGMENT IN SC 532/2005 OF ADDITIONAL DISTRICT** **& SESSIONS COURT, VADAKARA, KOZHIKODE** **APPELLANT/ACCUSED:** **CHANDRAN S/O. KELAN, RESIDING AT EDACHERRY, MANTHARATHOOR P.O., KOZHIKODE DISTRICT** . BY ADVS. C.VALSALAN BIJU J.THADIKKAL K.RAKESH ROSHAN THUSHARA.V ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, COCHIN.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2304 of 2007 2 ## **K.BABU, J.** **===================== Crl.A.No.2304 of 2007** **=====================** Dated this the 26[th] July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12.11.2007, passed by the learned Additional Sessions Judge, Vadakara, in S.C No.532/2005, the accused has preferred this appeal. 2. The trial court convicted the appellant for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 12.5.2003 at 12 pm, the accused was found in possession of 5 litres of illicit arrack in a 10 litre can at Maniyoor. 4. After completion of investigation, final report was submitted against the accused for offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Vatakara. The case was committed to the Sessions Court, Kozhikode from where it was made over to the Additional Sessions Judge, Vatakara. On appearance of the accused, charge was framed against him for offence punishable Crl.A.No.2304 of 2007 3 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. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 7, Exts.P1 to P7 and MO1. 6. 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, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 7. Heard Sri.Rakesh Roshan, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended that Crl.A.No.2304 of 2007 4 the prosecution failed to establish that the articles said to have been seized from the possession of the accused eventually reached the hands of the Analyst at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## THE POINT 11. PW3, the Preventive Officer, Vatakara Excise Range Office detected the offence. He has given evidence that on 12.5.2003 at 12.pm., the accused was found in possession of 5 litres of arrack in a 10 litre can at Maniyoor. PW3 seized the contraband substance from the possession of the accused and collected 200 ml of arrack in a 375 ml bottle as sample and sealed the same. PW3 prepared Ext.P1 seizure mahazar. The accused was arrested from the spot. Crl.A.No.2304 of 2007 5 12. PW1, the Excise Guard who had accompanied PW3 in the search and seizure, gave evidence in support of the prosecution. PW2, the independent witness, did not support the prosecution. PW4, the Excise Inspector, Vatakara, registered the crime against the accused. PW4 produced the properties seized from the place of occurrence and the accused before the court on the same day. PW5, the local Village Officer, was examined to prove the scene of occurrence. PW7, the property clerk of the Judicial First Class Magistrate Court, Vadakara, gave evidence that on 12.5.2003, he received the articles and produced before the learned Magistrate. PW6, the Excise Inspector, Vadakara Range, conducted investigation and submitted final report against the accused. 13. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence ultimately reached the Chemical Examiner's laboratory. He has relied on the following circumstances to substantiate his contentions: a) PW3, the detecting officer, has not given evidence as to the nature and description of the Crl.A.No.2304 of 2007 6 seal affixed on the bottle containing the sample. b) There is no evidence to show that the specimen impression of the seal has been provided to the Chemical Examiner for verification. 14. The oral evidence, given by PW3 and PW1, is silent regarding the nature and description of the seal affixed on the bottle containing the sample. 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. (vide: **Bhaskaran v. State of Kerala and another (2020 KHC 5296)** 15. The learned counsel for the appellant contended that there is no convincing evidence to show that the specimen impression of the seal had been forwarded to the Chemical Examiner for verification. The impression seen affixed against the space for sample seal in Ext.P5, copy of the forwarding note, is not legible. It cannot be used to verify the seal stated to have been affixed on the bottle containing the sample. There is absolutely no evidence to show that the specimen impression of the seal had been provided to the Chemical Examiner. No oral or documentary evidence has been placed before the court to Crl.A.No.2304 of 2007 7 ## convince that the specimen impression of the seal had been provided to the Chemical Examiner. In **Rajamma v. State of Kerala (2014(1) KLT 506)** this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 16. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6 chemical analysis report. 17. Ext.P6 certificate of Chemical analysis would show that one sealed 375 ml bottle containing 200 ml of colourless liquid alleged to be arrack was subjected to analysis in the laboratory Crl.A.No.2304 of 2007 8 and that the sample was received as per letter No.PR/98/03 dated 12.5.2003 of the Judicial First Class Magistrate Court, Vadakara. Ext.P6 would further show that the sample was delivered to the laboratory on 23.5.2003. Ext.P5, the copy of the forwarding note, shows that the bottle containing the sample was forwarded for examination through Sri.C.Sudheendran, an Excise Guard, on 23.5.2003. The learned Magistrate has put his initial below the endorsement to the above effect. The date shown below the initial is 22.3.2003. On a close verification of the date of despatch of the sample, in the endorsement made in Ext.P5, would show that initially the date 22.3.2003 was written and thereafter the same was corrected as 23.5.2003. 18. This Court is in the dark as to whether the sample forwarded by the learned Magistrate concerned on 23.5.2003, as seen from Ext.P5, was subjected to analysis in the Chemical Examiner's laboratory. Though PW7, the property clerk of the court, was examined as a witness he only stated that he received the articles including the sample on 12.5.2003. PW7, the Thondi Clerk of the court, failed to give evidence as to the date on which the sample was forwarded to the laboratory. It was the bounden duty of the prosecution to rule out these discrepancies to Crl.A.No.2304 of 2007 9 establish that the sample was sent to the laboratory in a tamper proof condition and that the very same sample stated to have been drawn from the scene of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 19. In this circumstance, this Court can only ignore Ext.P6 certificate of chemical analysis which has no sanctity in the eye of law, in view of the discrepancies mentioned above. 20. 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. 21. 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. **(vide: State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314].** 22. In the instant case the prosecution was unable to establish the link connecting the accused with the contraband Crl.A.No.2304 of 2007 10 seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence. 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. He is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K. BABU JUDGE** ab