GANESH, S/O VELLAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 13[TH] DAY OF JULY 2021 / 22ND ASHADHA, 1943** **CRL.A NO. 2361 OF 2006** **AGAINST THE JUDGMENT DATED 09.10.2006 IN SC.NO.68/2004 OF ADDITIONAL SESSIONS COURT (ADHOC-), KALPETTA, WAYANAD APPELLANT/ACCUSED:** **GANESH, S/O VELLAN AGED 35, KOOTARA HOUSE, AMBALAVAYAL,, NELLARACHAL P.O., S. BATHERY TALUK,, WAYANAD DISTRICT.** **BY ADV M.P.ASHOK KUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2361 of 2006 2 ## **K. BABU J.** **------------------------------------** ## **Crl.A.No.2361 of 2006** **------------------------------------** Dated this the 13[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 09.10.2006, passed by the learned Additional Sessions Judge (Adhoc-I), Kalpetta in S.C.No.68/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 17.12.2002 at about 05.00 p.m., the accused was found in possession of 2 liters of illicit arrack in a can having a capacity of 5 liters and a glass in front of the Pump House at Vattachola in Mupainadu Village. 4. Final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Chief Judicial Magistrate, Crl.A.No.2361 of 2006 3 Kalpetta. 5. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Additional Sessions Court (Adhoc-I), Kalpetta. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) 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 5 and Exts.P1 to P7 and MOs.1 to 2. 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 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 Crl.A.No.2361 of 2006 4 addressed from both sides, found that the accused is guilty of offence under Sections 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. 8. Heard Sri.M.P.Ashok Kumar, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused submitted that the prosecution failed to satisfactorily establish that the articles said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. The learned counsel for the appellant further submitted that prosecution has not offered any satisfactory explanation for the inordinate delay in conducting investigation. 10. The learned Public Prosecutor, per contra, Crl.A.No.2361 of 2006 5 submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 11. 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** 12. PW1, the Preventive Officer of Excise Enforcement Anti-Narcotic Special Squad, detected the offence. PW1 has given evidence that on 17.12.2002 while he was on patrol duty, the accused was found in possession of a Plastic can having a capacity of 5 liters at Vattachola. According to PW1, on further verification he found that the can in the possession of the accused contained 2 liters of illicit arrack. PW1 seized the contraband substance in the possession of the accused as per Ext.P2 seizure mahazar. The accused was arrested from the spot. PW1 had collected 200 ml of arrack as sample in a bottle having a capacity of 375 ml from the contraband Crl.A.No.2361 of 2006 **==> picture [7 x 9] intentionally omitted <==** substance possessed by the accused. PW1 has given evidence that he had sealed the sample bottle as well as the can containing the remaining arrack. 13. PW2, the Excise Guard, who had accompanied PW1 in the patrol duty, supported the prosecution case. PW3, an independent witness, examined to prove the arrest and seizure, did not support the prosecution case. PW4, the Excise Inspector, Excise Range Office, Kalpetta produced the articles allegedly seized from the place of occurrence before the Court on 18.12.2002. PW5, the Excise Inspector, Excise Range Office, Kalpetta took up the investigation on 05.08.2003 and submitted the final report on 20.08.2003. 14. The learned counsel for the appellant/accused contented that the prosecution failed to establish that the very same sample allegedly drawn from the can recovered at the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances Crl.A.No.2361 of 2006 7 to substantiate his contentions: - a) PW1, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - b) Ext.P2, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the sample bottle. - c) The prosecution failed to establish the safe custody of the bottle containing the sample during the period from 18.12.2002 to 16.01.2003. 15. PW1, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P2, seizure mahazar, is silent regarding the specimen of the seal stated to have been affixed on the bottle containing the sample. 16. The detecting officer, who has drawn the sample, Crl.A.No.2361 of 2006 8 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. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191), **Achuthan v. State of Kerala** [ILR 2016 (2) Ker. 145]] 17. Ext.P7, certificate of chemical analysis, would show that one sealed packet having a sealed 375 ml bottle containing 200 ml of a clear and colourelss liquid alleged to be arrack involved in CR.No.23/2002 of the Kalpetta Excise Range, was forwarded to the Chemical Examiner's laboratory as per letter No.TR 279/2002 dated 18.12.2002. Ext.P7 would further show that the above referred sample bottle reached the Chemical Examiner's Crl.A.No.2361 of 2006 9 laboratory only on 16.01.2003. The sample bottle was delivered at the laboratory by Shri P.T.Kannan, an Excise Guard. The prosecution has not given any explanation as to the custody of the bottle containing the sample during the period from 18.12.2002 to 16.01.2003. In such a situation it was imperative for the prosecution to examine the Thondi Clerk of the court or the Excise Guard, who received the sample bottle from the court to prove the tamper proof despatch of the sample to the laboratory. In the instance case, neither the Thondi Clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined. Non examination of the Thondi Clerk or the Excise Guard concerned would lead to the conclusion that prosecution failed to establish the tamper proof despatch of the sample to the laboratory. In the absence of satisfactory evidence to convince the court that the sample reached the laboratory in a tamper-proof condition no evidentiary value can be given to Ext.P7 certificate of chemical analysis. Crl.A.No.2361 of 2006 10 Ext.P7, certificate of chemical analysis, would further show that the sample reached the laboratory on 16.01.2003. But the same was analysised only on 09.07.2003. 18. 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.” 19. In the instant case, the long delay in the analysis of the sample remains unexplained. 20. 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 Crl.A.No.2361 of 2006 11 substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 21. 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. (vide: **State of Rajasthan v. Daulat Ram** [1980 (3) (SCC) 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 22. 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 as discussed above. 23. The upshot of the above discussion is that the conviction entered by the court below overlooking these Crl.A.No.2361 of 2006 **==> picture [13 x 9] intentionally omitted <==** vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. Any amount deposited by the accused as per the interim orders of this Court shall be disbursed as per law. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS