ENIYADAN DIVAKARAN S/O.THENIYADAN ERU v STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **CRL.A NO. 980 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 67/2006 OF ADDITIONAL** **SESSIONS COURT (ADHOC)-II, THALASSERY, KANNUR** **APPELLANT/ACCUSED:** **ENIYADAN DIVAKARAN S/O.THENIYADAN ERU, AGED 55, COOLIE, RESIDING AT, KADALKANDAM SIDE, KOLAYAD AMSOM, PERUVA DESOM.** **BY ADV SRI.P.NARAYANAN** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.980 of 2007 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.980 of 2007** **------------------------------------** Dated this the 1[st] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 29.03.2007, passed by the learned Sessions Judge, Thalasery, in SC.No.67/2006, the accused has preferred this appeal. By the impugned judgment, the accused was convicted for the offence punishable under Section 8(2) of the Kerala Abkari Act. 2. The prosecution case is that on 29.06.2004 at about 06.15 p.m., at Kadalkandam on the KolayadChembukavu road, the accused was found in possession of 1 ½ liters of illicit arrack in a can. The offence was detected by the Excise Inspector, Peravoor Excise Range. 3. After completion of investigation final report was submitted against the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act before the Judicial First Class Crl.A.No.980 of 2007 3 Magistrate, Kuthuparamba. The case was committed to the Sessions Court, Thalassery 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. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5 and Exts.P1 to P7. 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 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. The learned trial court, after hearing the arguments addressed from both sides, found that the accused was guilty of offence under Sections 8(2) of the Abkari Act and Crl.A.No.980 of 2007 4 he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of six months and to pay a fine of Rs.1,00,000/under Section 8(2) of the Abkari Act. 6. Heard Smt. Sheeba.P, the learned counsel appearing for the appellant/accused and Sri. G. Sudheer, the learned Public Prosecutor appearing for the State. 7. The counsel for the appellant/accused submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution has succeeded in establishing the charge against the accused. 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. While PW5, the Excise Inspector, Peravoor Crl.A.No.980 of 2007 5 Excise Range was on patrol duty on 29.06.2004, the accused was found carrying a can in front of Kadalkandam waiting shed on the Kolayad-Chembukavu road. PW5 verified the substance contained in the can and found that it was illicit arrack. The accused was arrested by PW5 and the contraband substance was seized. PW5 collected 300 ml arrack from the can in a 375 ml bottle and sealed the same to be used as sample. He prepared Ext.P1 seizure mahazar. 11. PWs 2 and 3, the independent witnesses, did not support the prosecution case. PW4 conducted investigation and submitted final report. PW1, the Excise Preventive officer, who had accompanied PW5 in the search and seizure, supported the prosecution case. 12. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance, allegedly recovered from the place of occurrence, was eventually subjected to analysis in the Chemical Crl.A.No.980 of 2007 6 Examiner's laboratory. 13. The learned counsel for the appellant relied on the following circumstances to establish her contention: - a) The detecting officer has not given convincing evidence as to the nature and description of the seal affixed on - the bottle containing the sample. - b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal. - c) The prosecution failed to establish that the sample was sent to the laboratory in a tamper-proof condition. 14. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW5, the detecting officer, gave evidence that the seal used was “MVM”. I have gone through Ext.P5, the copy of the forwarding note, which contains an Crl.A.No.980 of 2007 7 impression affixed against the space meant for the sample seal. The said impression not in conformity with the nature of seal described by PW5. The seal affixed in Ext.P5 is not legible. So, this Court is not in a position to ascertain the nature and description of the seal stated to have been used by the detecting officer at the place of occurrence. The nature of the seal used shall be mentioned in the seizure mahazar and produced before the court so as to enable the court to satisfy the genuineness of the sample produced in the court. [See: **Bhaskaran k.v. State of Kerala and another** (2020 KHC 5296). 15. Ext.P5 is silent regarding the date on which the bottle containing the sample was forwarded to the chemical examiner's laboratory. Ext.P3, the certificate of the chemical analysis, would show that the sample was forwarded to the Chemical Examiner's laboratory as per letter No RP/269 dated 29.06.2004 of the Judicial First Class Magistrate court, Koothuparamba. Ext.P3 would further show that the sample was received in the laboratory on Crl.A.No.980 of 2007 8 15.09.2004 through an Excise Guard by name M.P.Sajeevan. In the absence of any contra evidence, this Court has to come to an inference that the sample was received by the official concerned on 29.06.2004 from the court. There is a delay of almost two and half months in bringing the sample to the laboratory which has not been explained by the prosecution. 16. While dealing with a similar fact situation this Court in _**Viswanadhan v. State of Kerala**_ [2016 (3) KHC 38] held thus: _“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the_ Crl.A.No.980 of 2007 9 _contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ 17. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory after the same was forwarded from the court it cannot be concluded that the sample reached the laboratory in a tamper-proof condition. 18. Admittedly, the sample remained in the hands of the Property Clerk of the court, the official who received the sample from the court and the Excise official who delivered the same to the chemical examiner's laboratory. None of these witnesses were examined to establish that while in their custody the seal on the sample was not tampered with. The inevitable effect 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 had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v.** Crl.A.No.980 of 2007 10 **Daulat Ram** [(1980) 3) SCC 303]). 19. 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 co-related. 20. 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 contraband substance said to have been seized from the possession of the accused {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 21. 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 Crl.A.No.980 of 2007 11 evidence and other circumstances discussed above. 22. 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. This Crl.Appeal is allowed as above. **SD/-** **K. BABU, JUDGE** rps/