Chellappan S/o Raghavan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 CRL.A NO. 2523 OF 2007** **AGAINST THE JUDGMENT DATED 30.11.2007 IN SC.NO. 397/2006 OF THE ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE (NDPS ACT CASES), THODUPUZHA, IDUKKI DISTRICT** ## **APPELLANT/ACCUSED:** **CHELLAPPAN S/O. RAGHAVAN, VALIYAPARAMBIL HOUSE, AYYAPPANCOIL VILLAGE, KALYANATHANDU KARA.** **BY ADVS. SRI.B.PREMOD SRI.SUDHEER GANESH KUMAR.R.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, KATTAPPANA RANGE, REPRESENTED, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **BY SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2523 OF 2007** 2 ## **K. BABU J.** **------------------------------------** **Crl.A.No.2523 of 2007** **------------------------------------** Dated this the 2[nd] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 30.11.2007, passed by the learned Additional Sessions Judge/Special Judge for NDPS Act Cases, Thodupuzha in SC.No.397/2006. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 11.06.2003 at about 06.00 p.m., the accused was found in possession of 3 liters of illicit arrack on the Kattapana-Elappara road near Nariyampara City. The offence was detected by the Excise Inspector, Kattapana. 4. After completion of investigation final report was submitted against the accused for the offence **CRL.A NO. 2523 OF 2007** 3 punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Kattapana. 5. The case was committed to the Sessions Court, Thodupuzha, 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 3, Exts.P1 to P9 and Mos.1 to 3. 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. 2523 OF 2007** 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 six months and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.B.Pramod, the learned counsel appearing for the appellant/accused and Smt. Maya M.N., the learned Public Prosecutor appearing for the respondent. 9. The counsel for the appellant/accused contended that the prosecution has not succeeded in establishing 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. 2523 OF 2007** 5 whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 12. PW2, the Excise Inspector, Kattapana Range, was on patrol duty on 11.06.2003. At about 06.00 p.m., while the Excise team led by PW2 was travelling on the Kattapana-Elappara road at Nariyampara City, the accused was found carrying a plastic cover. The Excise team prevented the accused from moving away. PW2 inspected the plastic bag found in possession of the accused. The plastic bag contained 2 plastic bottles. PW2 ascertained that the 2 bottles contained illicit attack. PW2 seized the contraband substance found in the possession of the accused, as per Ext.P1 seizure mahazar. He collected 200 ml each from the 2 bottles in 375 ml bottles as sample and sealed the same. The accused was arrested from the spot. 13. PW1, an independent witness, did not support the prosecution case. PW3 conducted investigation and **CRL.A NO. 2523 OF 2007** 6 submitted final report before the Court against the accused. 14. 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) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. - (b) Ext.P1 seizure mahazar, does not contain any narration as to the nature and description of the seal affixed on the bottles containing the sample. - (c) Ext.P7, copy of the forwarding note, is silent regarding the person with whom the sample bottle was entrusted to deliver the same to the Chemical Examiner's laboratory. **CRL.A NO. 2523 OF 2007** 7 (d) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 15. PW2 had not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 16. 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. The nature of the seal used shall be mentioned in the seizure mahazar. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 17. Learned counsel for the accused/appellant submitted that Ext.P8, the copy of the forwarding note, does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory and that the learned Magistrate who **CRL.A NO. 2523 OF 2007** 8 countersigned on Ext.P8 did not mention the date on which he made his initial thereon. Ext.P8, copy of the forwarding note, is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P9, the certificate of chemical analysis, would show that the Excise Guard, Sri.Thankachan Abraham, delivered the sample to the laboratory on 26.09.2003. It is not discernible as to why the space meant for writing the name of the Excise Guard with whom the sample was sent, remained vacant in Ext.P8. The learned Magistrate omitted to mention the date on which he made his initial. In the absence of evidence regarding the date on which the learned Magistrate put his initial, it is not clear from Ext.P8 as to how many days before the despatch of the sample, the learned Magistrate put his initial threon. This is relevant, particularly when the space meant for writing the name of the official with whom the sample was sent, remained vacant. In such a situation, it was imperative for the prosecution to examine the Thondy **CRL.A NO. 2523 OF 2007** 9 clerk of the court or the Excise guard concerned to prove the tamper proof despatch of the sample to the laboratory. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], held thus: “7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise **CRL.A NO. 2523 OF 2007** 10 - guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” (Emphasis supplied) 18. As mentioned above, this Court is in the dark as to the date on which the sample was handed over to the Excise official concerned, who received the same from the court for delivering to the Chemical Examiner's laboratory. It is the admitted case of the prosecution that the sample remained in the custody of the property clerk of the court and Sri.Thankachan Abraham, the Excise Guard who delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to **CRL.A NO. 2523 OF 2007** 11 rule out the possibility of the sample being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]). 19. The sample reached the Chemical Examiner's laboratory on 26.09.2003, but the same was analysised only on 29.10.2004. 20. 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 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 **CRL.A NO. 2523 OF 2007** 12 explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 21. In the instant case, the delay of more than one year in the analysis of the sample remains unexplained. 22. 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. 23. 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. 24. 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 **CRL.A NO. 2523 OF 2007** 13 laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 25. 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