Chinnan @ Binoy S/o Chacko v. Addl. Sub Inspector of Police, Kattappana

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 10TH DAY OF JULY 2020 / 19TH ASHADHA, 1942** ## **CRL.A.No.2040 OF 2005** **AGAINST THE JUDGMENT IN SC NO.658/2004 DATED 31-10-2005 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **CHINNAN @ BINOY S/O CHACKO, KODATHUSSERRIL HOUSE, THANKAMANI VILLAGE, THAMBURAN KUNNU BHAGOM, IDUKKI DIST.** **BY ADVS. SRI.T.MADHU SRI.A.SAIN PAUL** ## **RESPONDENT:** **THE ADDL.SUB INSPECTOR OF POLICE KATTAPPANA, IDUKKI DISTRICT REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R1 BY SR.PUBLIC PROSECUTOR SRI. D. CHANDRASENAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2020 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.2040 of 2005 2** ## **JUDGMENT** ## **Dated this the 10th day of July 2020** ... **The above appeal is filed by the accused in Sessions Case No.658 of 2004 on the file of the Additional Sessions Court (Adhoc)-II, Thodupuzha.** **2. The Sub Inspector of Police, Kattappana charge sheeted the accused for the offence punishable under Sections 55(a) & (i) and 8(1) & (2) of the Abkari Act.** **3. The prosecution case is that, on 16.10.2001 at 6 p.m., the accused was found possessing two litres of arrack in two bottles. The offence was detected by the Sub Inspector of Police, Kattappana, who arrested the accused and seized the arrack and registered Crime No.538 of 2001.** **4. After investigation, the final report was filed before the Judicial First Class Magistrate Court, Kattappana. The case was committed to the** **CRL.APPEAL NO.2040 of 2005 3** **Sessions Court. The accused appeared before the Sessions Court. The Sessions Court framed charge under Sections 8(1)&(2) and 55(a)&(i) of the Abkari Act.** **5. To substantiate the case, PW1 to PW5 are examined on the side of the prosecution. Exhibits P1 to P9 are the documents marked on the side of the prosecution. MO1 to MO7 are the material objects.** **6. After going through the evidence and documents, the trial court found that, the accused committed the offence under Sections 55(a) and 8(2) of the Abkari Act. Aggrieved by the conviction and sentence, this Crl.Appeal is filed.** **7. Heard the learned Counsel for the appellant and the learned Public Prosecutor.** **8. The learned counsel for the appellant submitted that, the prosecution miserably failed in this case to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst.** **9. The learned Public Prosecutor submitted** **CRL.APPEAL NO.2040 of 2005 4** **that, there is oral and documentary evidences to prove the case. The Public Prosecutor supported the conviction and sentence imposed by the trial court.** **10. The point for consideration in this case is whether the accused committed the offence under Section 55(a) and 8(2) of the Abkari Act.** **11. The prosecution case is that, PW1, the Sub Inspector of Police, Kattappana was on patrol duty on 16.10.2001. PW4 was the head constable who accompanied PW1. According to the prosecution, the accused was found in possession MO1 glass and illicit arrack. The Detecting Officer took the sample from the contraband article and sent it for chemical examination. As per Ext.P9 report of the Chemical Examiner, it was proved that, the sample contained ethyl alcohol. Hence, the appellant committed the offence. Admittedly, the alleged seizure was on 16.10.2001. Exhibit P7 is the property list in this case. As per Ext.P7, the properties are reached in the court on 17.10.2001. There is an endorsement on the back side of Ext.P7** ## **CRL.APPEAL NO.2040 of 2005 5** **on 19.10.2001, which is extracted hereunder:** **“Since there is no sufficient space in the ‘T’ room item No.6 in PR 208/2001 may be returned to the safe custody of the S.I. of Police, Kattapana for safe custody until further orders”.** **This was ordered by the learned Magistrate on 19.10.2001. When PW1, the Sub Inspector of Police was examined before the court, he deposed that, he produced thondy article before the court. He also deposed that, thondy article is not returned to him on that date. But, he pleaded ignorance about the return of thondy article on any subsequent date. PW5 is the Investigating Officer. PW5 deposed that, he did not see the thondy article. A perusal of Ext.P9, it shows that, thondy article was received by the Chemical Examiner on 6.4.2002 through a Police Constable bearing No.1860. PW4 has no case that, he produced the sample before the Analyst while he was examined before the court. He pleaded ignorance that, whether the material objects are received by him at any point of time. This is the evidence in** ## **CRL.APPEAL NO.2040 of 2005 6** **this case regarding the sample which is alleged to be taken from the contraband article and which is examined by the Chemical Examiner.** **12. It is the fundamental duty of the prosecution to prove that, the sample taken from the contraband article reached in the hands of the Analyst. The prosecution has to prove all the links starting from seizure of the contraband article till it reaches in the hands of the Analyst. In this case, the alleged seizure was on 16.10.2001. As per Ext.P9, the Analyst received the sample only on 6.4.2002 through a Police Constable bearing No.1860. He was examined as PW4. PW4 has no such case. Therefore, the prosecution has no case that, who was in custody of the sample bottle from 16.10.2001 to 06.04.2002. In Madhavan Vs. State of Kerala (2019 (4) KLT 18), this Court observed like this:** **“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the** **CRL.APPEAL NO.2040 of 2005 7** **prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner.** **20. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”** **Similarly this Court in Gireesh @ Manoj v. State of Kerala(2019(4) KLT 79) and in Vijayan @ Pattalam Vijayan and another v. State of Kerala (2018 (2) KHC 814) this Court considered the same point. In Gireesh's case (supra), this Court observed like this:** **CRL.APPEAL NO.2040 of 2005 8** **“15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.”** **16. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)]. Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. State of Kerala : AIR 1994 SC 117).** **17. The principles mentioned above get support also from the very recent decision of** **CRL.APPEAL NO.2040 of 2005 9** **the Supreme Court, in Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019), wherein it has been held as follows:** **"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 (emphasis supplied).”** **In this case, admittedly, the seizure of the contraband article was on 16.10.2001. The Chemical Examiner received the sample only on 06.04.2002. The prosecution has not proved all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst. Hence, in the light of the authoritative judgments, I think, the benefit of doubt will go in favour of the accused.** **CRL.APPEAL NO.2040 of 2005 10** **Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 31.10.2005 in S.C. No.658 of 2004 by the Additional Sessions Court (Adhoc)-II, Thodupuzha are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled.** **Sd/-** **P.V.KUNHIKRISHNAN** **pkk** **JUDGE**