Eldhose v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 2262 OF 2007 ``` ``` AGAINST THE JUDGMENT IN CP 95/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , (MUNSIFF MAGISTRATE COURT) ADIMALI SC 495/2005 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA APPELLANT/S: ``` ``` ELDHOSE,S/O.JOSEPH, AGED 1 YEARS THUPPIYEL VEEDU, PARISAKALLUKARA, MANNAMKANDOM VILLAGE,, DEVIKULAM TALUK (A2) BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP. BY PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SMT. REKHA.S SR. PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2262 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 16.11.2007, passed by the Additional Sessions Court/Special Court for NDPS Act Cases, Thodupuzha in Sessions Case No.495/2005, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 11.01.2003 at 12.50 pm, the appellant and the other accused were found transporting 10 litres of illicit arrack at Avarukutty junction in violation of the provisions of the Abkari Act. 3. After the investigation, final report was submitted against the appellant and the other accused for the offence punishable Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Sec.8(2) of the Abkari Act. The appellant and the other accused pleaded not guilty to the charge and therefore they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5, and proved Exts.P1 to P9 and MOs 1 and 2. 5. After the closure of the prosecution evidence, the accused were examined under Sec.313 Cr.P.C. They pleaded total innocence. The trial Court heard the matter under Sec.232 Cr.PC and found evidence against the accused and they were called upon to enter on their defence, and adduce evidence, if any, they may have in support thereof. After hearing arguments on both sides, the trial Court found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted them thereunder. ``` CRL.A NO. 2262 OF 2007 ``` ..4.. 6. Heard Shri. G.M. Tomy, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused No.2 challenged the impugned judgment of conviction and sentence on the following grounds:- - (i) The prosecution failed to establish the identity of - the person who allegedly ran away from the scene of occurrence. - (ii) The prosecution failed to establish that the contraband article allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned Senior Public Prosecutor submitted that the prosecution successfully established the offence alleged against the appellant/accused No.2. 9. The learned counsel for the appellant contended ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** that the prosecution failed to establish the identity of the person allegedly left the scene on seeing the excise party. As per the prosecution case, on seeing the Excise party, the appellant ran away from the scene of occurrence. The date of occurrence is 11.01.2003. The official witnesses identified the appellant on 24.10.2007, more than four years after the detection. The witnesses who identified the appellant in the box had no case that they had any previous acquaintance with the appellant. There is no convincing material to show that the witnesses had sufficient opportunity to identify the physical features of the man who left the scene on seeing the Excise party. Going by their evidence, it can be seen that they had only a fleeting glimpse of the person who ran away from the scene. 10. 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 ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 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. 11. The learned counsel for the appellant further contended that the prosecution failed to establish that the contraband allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner‘s Laboratory. It is trite that the prosecution in ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 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 contraband substance said to have been seized from the possession of the accused. This Court in **Baburaj v. State of Kerala** [2021(6) KLT 417] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 12. Ext.P2 seizure mahazar does not contain the nature of the seal used by the detecting officer at the time of drawing the sample. The detecting officer has not given evidence as to the nature of the seal stated to have been used. 13. In **Bhaskaran v. State of Kerala and another** ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** (2020 KHC 5296) and **Krishnadas v. State of Kerala** (2019 KHC 191), this Court held that 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. 14. In the present case, the sample remained in the custody of several officials. Ext. P7, the property list shows that the sample was produced before the Court on 12.01.2003. In Ext.P7 report dated 11.01.2003, it is endorsed that the articles, including the sample, were entrusted to Shri.T.K. Reghu, an Excise Preventive Officer. A further endorsement in Ext.P7 shows that the Excise Inspector, Adimali produced the articles before the Court on 28.01.2003. As per another endorsement dated 28.01.2003 in Ext.P7, the bottle containing the sample was received in the Court and the rest of the articles were given to the custody of the Excise Inspector, ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** Adimali. It is seen from Ext. P8 forwarding note that the space meant to indicate the name of the Excise Guard with whom the sample was forwarded to the laboratory was left unfilled. Therefore, there is nothing to ascertain who received the sample from the Court to be delivered to the laboratory. Ext.P9 Certificate of Chemical Analysis shows that one Jayachandran delivered the sample to the laboratory. What is evident from these materials is that the sample changed several hands. None of those officials were examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period, a fact which has to be proved affirmatively by the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. ``` CRL.A NO. 2262 OF 2007 ``` ..10.. 15. Ext. P9 shows that the sample reached the laboratory on 29.01.2003. The sample was subjected to analysis only on 07.09.2004. There is no explanation for the delay in the process of examination of the sample in the laboratory. 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 explanation. These are all suspicious aspects, the benefit of which must go to the accused.” ## 16. 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 ``` CRL.A NO. 2262 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** and that the sample seized and that tested have to be correlated. 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused No.2 is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **Sd/K. BABU, JUDGE** kkj