CRL.A No.2160 of 2006

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **CRL.A NO. 2160 OF 2006** **AGAINST THE JUDGMENT IN SC 940/2001 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, THIRUVANANTHAPURAM APPELLANT/ACCUSED:** **SWAPANAN S/O.RAVI, LEKSHAM VEEDU, KOITHOORKONAM, VELLOOR MURI, ANDOORKONAM MURI.** BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.DILEEP P.PILLAI SRI.RENJITH B.MARAR SRI.T.K.SUJITH ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SR. PUBLIC PROSECUTOR SRI. M.S. BREEZ** **HIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING** : Crl.A No.2160 of 2006 2 ## **K.BABU, J.** **===================== Crl.A No.2160 of 2006** **=====================** Dated this the 27[th] day of July, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 10.10.2006 in S.C.No.940/2001 passed by the Additional District and Sessions Judge, Fast Track No.II (Adhoc), Thiruvananthapuram. The appellant/accused was convicted of the offence punishable under Section 55(a) of the Abkari Act by the learned Additional Sessions Judge by way of the impugned judgment. 2. The prosecution case is that on 5.2.1998 at 3 pm., the accused was found carrying 5 litres of arrack in a plastic can through the Konnoorkonam-Pallipuram road. PW4, the Excise Preventive Officer, attached to the Excise Enforcement Special Squad, Thiruvananthapuram, detected the offence. 3. After completing investigation, final report was submitted against the accused for the offence punishable under Section 8(1) r/w 58 of the Abkari Act before the Judicial First Crl.A No.2160 of 2006 3 Class Magistrate Court II, Attingal. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court, Thiruvananthapuram. On appearance of the accused charge was framed against him for the offence punishable under Section 8(1) r/w 58 of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of oral evidence of PWs 1 to 6, Exts.P1 to P7 and MO1. 5. 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 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 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 1½ years and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. Crl.A No.2160 of 2006 4 6. Heard Sri.Sasthamangalam S.Ajithkumar, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance said to have been seized from the possession of the accused eventually reached the hands of the Analyst at the Chemical Examiner's laboratory. 8. 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. 9. 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 10. PW4, the Preventive Officer, Excise Enforcement Special Squad, Thiruvananthapuram, detected the offence. He gave evidence that on the date of occurrence, while the excise team led by him was on patrol duty, the accused was found Crl.A No.2160 of 2006 5 carrying 5 litres of illicit arrack in a plastic can on the Konnoorkonam-Pallipuram road. PW4 seized the contraband substance from the possession of the accused as per Ext.P1 seizure mahazar. The accused was arrested by PW4. PW4 sealed the can containing illicit arrack at the place of occurrence. 11. PW5, the Excise Inspector, Kazhakuttom Excise Range, registered Ext.P4 occurrence report alleging the aforesaid offence against the accused. He prepared Ext.P5 property list and produced the contraband substance before the court. 12. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW3, another Preventive Officer who had accompanied PW4, also supported the prosecution case. PW6, the Excise Range Officer, Kazhakoottam, conducted investigation and submitted final report. 13. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused was subjected to analysis at the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following reasons to substantiate his contentions: a) PW4, the detecting officer, and the other Crl.A No.2160 of 2006 6 official witness who had accompanied him at the time of seizure, have not given evidence as to the nature and description of the seal affixed on the can containing the contraband substance. b) Ext.P1 seizure mahazar is also silent regarding the nature and description of the seal used by the detecting officer at the place of occurrence. c) No sample was drawn from the article allegedly seized from the place of occurrence by the detecting officer. d) There is no evidence to show that the specimen impression of the seal, stated to have been affixed on the bottle containing the sample drawn from the contraband substance by the official of the court, had been provided to the Chemical Examiner for comparison. 14. The learned counsel for the appellant, firstly, contended that there is no assurance that the contraband substance allegedly seized from the place of occurrence was actually placed before the court. The learned counsel submitted that there is nothing on record to show that the contraband Crl.A No.2160 of 2006 7 substance was sealed at the place of occurrence. 15. The oral evidence of PW4, the detecting officer, and the excise official who had accompanied him, is silent regarding the nature and description of the seal stated to have been affixed on the can containing the contraband at the place of occurrence. Ext.P1 seizure mahazar is also silent regarding the nature and description of the seal used by the detecting officer at the place of occurrence. 16. The detecting officer was expected to give evidence on the nature and description of the seal used at the place of occurrence. 17. It is admitted by the prosecution that no sample was drawn at the place of occurrence. The contraband substance allegedly seized from the place of occurrence was produced before the court on 6.2.1998 as per Ext.P5 property list. Ext.P7 certificate of chemical analysis would show that one sealed bottle containing 200 ml of clear and colourless liquid alleged to be arrack involved in C.R No.5/1998 of Kazhakuttam Range was received by the Chemical Examiner as per letter No.T73/98 dated 6.2.1998 of the Judicial First Class Magistrate Court II, Attingal. I have carefully gone through the oral evidence of the official Crl.A No.2160 of 2006 8 witnesses, who supported the prosecution case. Their evidence is silent as to who had drawn the sample from the contraband substance produced before the court. No evidence has been produced by the prosecution to establish that the learned Magistrate directed any official of the court, who was in charge of the properties involved, to take a specified measure of sample from the bulk quantity received in this case and to despatch the same in a tamper proof condition to the Chemical Examiner's laboratory. What can be inferred from Ext.P7 certificate of chemical analysis is that somebody might have taken sample from the bulk quantity of arrack and might have despatched the same under a covering letter of the learned Magistrate as mentioned above. This Court is in the dark as to who took the sample and on which date and how much quantity and also whether it was despatched in a tamper proof condition. Yet another aspect which requires consideration is that Ext.P6 copy of the forwarding note does not say that the specimen impression of the seal had been forwarded to the Chemical Examiner for facilitating verification of the seal affixed on the bottle containing the sample so as to see that it was tallied with the specimen. Absolutely no evidence to show that the specimen impression of Crl.A No.2160 of 2006 9 the seal was forwarded to the Chemical Examiner. 18. In **Rajamma v. State of Kerala (2014(1) KLT 506)** , this Court had occasion to consider a similar fact situation and 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”. 19. There is lack of evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. Ext.P6, the copy of the forwarding note, does not contain any endorsement that the excise official, who delivered the sample to the Chemical Examiner, himself actually received the same from the court. 20. It has come out in evidence that the sample changed Crl.A No.2160 of 2006 10 several hands before it reached the Chemical Examiner's laboratory. It remained in the custody of the official concerned of the court, who received the contraband substance, the officials of the court, who had taken the sample and the excise official who received the sample from the court. None of these witnesses were examined by the prosecution to prove that while in their custody, the seals were not tampered with. The prosecution ought to have established that the sample was collected from the bulk quantity produced before the court under the supervision of a responsible officer. The prosecution failed to establish that the sample was collected, from the contraband substance produced, in a transparent manner, so as to rule out any possibility of the sample being changed or tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being tampered with. (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314].** 21 **.** The quantity of the contraband substance allegedly seized from the possession of the accused was 5 litre of arrack in a black jerry can. A perusal of the appendix of the judgment would show that MO1 can marked during the trial had contained 5 litres of illicit arrack. This also raises some suspicion as to Crl.A No.2160 of 2006 11 whether the contraband substance subjected to analysis at the Chemical Examiner's laboratory was the very same substance drawn from the bulk quantity produced before the court. In view of the above discrepancies, affecting the genuineness of the sample subjected to analysis, no evidentiary value can be given to Ext.P7 certificate of chemical analysis. 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. 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. (vide: **State of Rajasthan v. Daulat Ram** Crl.A No.2160 of 2006 12 ## **[AIR(1980)SC 1314].** 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 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(1) r/w Section 58 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**