Chandrika d/o Devayani v. State of Kerala

1 Criminal Appeal No.412 of 2008 **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944 CRL.A NO. 412 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 849/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM** ## **APPELLANT/ACCUSED:** CHANDRIKA D/O. DEVAYANI, PEEDIKATHARAYIL VEEDU, KOTTAKKUPURAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY,, KOLLAM DISTRICT. BY ADV B.MOHANLAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY THE EXCISE RANGE INSPECTOR, KARUNAGAPPALLY, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA,S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Criminal Appeal No.412 of 2008 **K.BABU, J** . -------------------------------------Criminal Appeal No.412 of 2008 --------------------------------------Dated this the 27[th] day of May, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 05.02.2008, passed by the Additional Sessions Court (Adhoc-I), Kollam in Sessions Case No.849/2002, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay fine of Rs.1 Lakh. 2. The prosecution case is that on 09.07.2000 at 8.00 p.m. the accused was found in possession of 3 litres of illicit arrack at Vallikkavu in Kulashekarapuam village. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 8(2) of the Abkari Act 3 Criminal Appeal No.412 of 2008 before the jurisdictional Magistrate. The case was committed to the Sessions Court, Kollam from where it was made over to the trial Court. On the appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P7 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under 4 Criminal Appeal No.412 of 2008 Section 8(2) of the Abkari Act and convicted her thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. 6. Heard Sri. B.Mohan Lal, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the State. 7. The learned counsel for the appellant/accused submitted as follows:- (i) The prosecution failed to establish the identity of the person who was found in possession of the contraband substance at the place of occurrence. (ii) The delay in the production of the property allegedly seized from the possession of the accused has not been satisfactorily explained. (iii) The act of drawing the sample by an officer of the Court is not a procedure established by law. (iv) The prosecution failed to establish that the contraband article seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 5 Criminal Appeal No.412 of 2008 8. The offence was detected by the Excise Circle Inspector, Karunagappally (PW1). According to PW1, on 09.07.2000 at 8.00 p.m he was on patrol duty in Kulashekarapuam village. When the excise team led by PW1 reached Vallikkavu, a lady was found carrying a 10 litre can containing 3 litres of liquid and it was seized by PW1. On verification, it was found that the can contained illicit arrack. According to PW1, the person who had carried the contraband substance could not be arrested, as no woman police constables were available. The accused was therefore not arrested from the scene of occurrence. After submission of the final report the accused surrendered before the Court. No test identification parade was conducted in the matter. The accused was identified by PW1 and the other official witness (PW2) after a long lapse of 8 years in 2008. The prosecution has no case that they had any previous acquaintance with the accused. The independent witnesses, who were examined to prove the incident did 6 Criminal Appeal No.412 of 2008 not support the prosecution case regarding the seizure of the contraband substance. The witnesses who identified the accused in the box never had an opportunity to see the accused after the incident. No identifying features of the person, who was found in possession of the contraband substance, were narrated in the seizure mahazar. Therefore, the identification of the accused in the box by the official witnesses cannot be treated as credible. 9. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court **[vide: Kanan and** **others v. State of Kerala (AIR 1979 SC 1127)], Jameel v.** 7 Criminal Appeal No.412 of 2008 **State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So, on this ground alone the prosecution must fail. 10. The learned counsel for the appellant further contended that the delay in the production of the sample before the Court has not been satisfactorily explained by the prosecution. The alleged seizure was on 09.07.2000. The contraband substance reached the Court only on 12.07.2000. The prosecution has not offered any satisfactory explanation for the delay in the production of the property before the Court. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act 8 Criminal Appeal No.412 of 2008 before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” **In Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 12. The unexplained delay in the production of the property before the Court would lead to the conclusion that tampering with the contraband substance produced before the Court could not be ruled out. 13. In the present case, the detecting officer had not drawn the sample at the scene of occurrence. He 9 Criminal Appeal No.412 of 2008 produced the can containing 3 litres of arrack before the Court. On the request of the detecting officer the property clerk of the Court, who was examined as PW6, had drawn the sample from the bulk quantity of the liquid produced before the Court and forwarded the same to the laboratory. The sanctity of drawing sample by an officer of the Court during the course of investigation was considered by this Court in **Baburaj v.State of Kerala** [2021 (6) KLT 416]. In **Baburaj** (supra) this Court held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the 10 Criminal Appeal No.412 of 2008 contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala [2019 (2) KLT 974]** , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala [2020 (2) KLT 590]** , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 14. In **Baburaj** (supra) this Court concluded that as 11 Criminal Appeal No.412 of 2008 the procedure adopted in drawing the sample from the contraband substance by an officer of the Court as per the instructions of the jurisdictional Court has no sanction of law, no evidentiary value can be given to the certificate of chemical analysis obtained based on the sample so drawn. The resultant conclusion is that Ext.P5, certificate of analysis has no evidentiary value. 15. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be corelated. 16. The prosecution therefore failed to establish that the contraband allegedly seized from the place of occurrence was eventually examined by the chemical examiner. The prosecution also failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence. 12 Criminal Appeal No.412 of 2008 17. The conviction recorded and the sentence passed by the Court below overlooking these vital aspects cannot be sustained. 18. In the result, the appellant/accused is not guilty of the offence punishable under Section 8(2) of the Abkari Act. The appellant/accused is acquitted. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk