GIREESH @ MANOJ v. STATE OF KERALA THROUGH S.I.OF POLICE, KOTTARAKKARA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 29TH DAY OF AUGUST 2019 / 7TH BHADRA, 1941** ## **CRL.A.No.459 OF 2008** **AGAINST THE JUDGMENT IN SC 84/2002 DATED 26-02-2008 OF ADDL.SESSIONS JUDGE (ABKARI) KOTTARAKKARA** ## **APPELLANT/ACCUSED:** **GIREESH @ MANOJ, S/O.RAVEENDRAN, RAVEENDRA SADANAM, KANNOMCODU MURI, VETTIKAVALA VILLAGE, KOTTARAKKARA.** **BY ADVS. SRI.MATHEW B. KURIAN SRI.K.T.THOMAS** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THROUGH S.I.OF POLICE, KOTTARAKKARA, REPRESENTED BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI.E.C.BINEESH,PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2019, THE COURT ON 29-08-2019 PASSED THE FOLLOWING:** Crl.A.No.459/2008 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.459 of 2008 -------------------------------------------Dated this the 29[th] day of August, 2019 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.84/2002 on the file of the Court of Session, Kollam. The appeal is filed assailing the conviction entered and sentence passed against him under Sections 55(a) of the Abkari Act, 1077. 2. The prosecution case is that on 12.06.1998, at about 15.15 hours, when PW5 Sub Inspector conducted search of the house by name Raveendra Sadanam situated in Ward No.II of Vettikkavala Panchayat in which the appellant was residing, the Sub Inspector found five cans, each containing 20 litres of spirit, in the house. PW5 Sub Inspector took samples of the liquid from the cans and seized the cans containing the residue as per Ext.P2 search list. The appellant ran out of the house and escaped and therefore, the Sub Inspector could not arrest him. It is alleged Crl.A.No.459/2008 3 that the appellant had possessed and stored the spirit in the house for sale. 3. The appellant pleaded not guilty to the charge framed by the trial court under Sections 55(a) and 55(i) of the Abkari Act. The prosecution examined PW1 to PW5 and marked Exts.P1 to P6. No evidence was adduced by the appellant. The trial court found the appellant not guilty of the offence punishable under Section 55(i) of the Abkari Act and acquitted him of that offence. The trial court found the appellant guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of five years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. 4. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records. 5. PW1 and PW2 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They even denied the signature allegedly Crl.A.No.459/2008 4 put by them in Ext.P2 search list. 6. PW5 is the Sub Inspector who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW4 is the police constable who was in the police party led by PW5. His evidence, more or less, corroborates the testimony of PW5 on the material particulars of the occurrence. 7. There is no striking improbability or material contradiction or discrepancy in the evidence of PW4 and PW5 regarding the search of the house by name Raveendra Sadanam and seizure of five cans each containing some liquid from a room in that house. Their evidence, along with Ext.P2 search list, proves the search of the house and seizure of five cans containing some liquid from the house. 8. However, there is absolutely no evidence to connect the appellant with the five cans containing liquid which were seized from the house searched by PW5. The evidence of PW4 and PW5 is that when the police party reached in front of the house which was searched by them, a person who was standing at the Crl.A.No.459/2008 5 varanda of the house ran away from there. Neither PW4 nor PW5 identified the appellant/accused in the court as the person who ran away from the house which was searched by them. Substantive evidence is identification of the accused in the court, by the witnesses, as the person who committed the alleged act. Such evidence is absent in this case. There is also no reliable evidence adduced by the prosecution to prove that the house in question was under the ownership or occupation or possession of the appellant. 9. Ext.P1 is the certificate of chemical analysis conducted in respect of the samples of liquid which were sent for analysis. Ext.P1 certificate shows that the samples of liquid contained ethyl alcohol. 10. Learned counsel for the appellant contended that there is doubt as to whether the very same samples of the liquid taken by PW5 at the spot were produced before the court and sent for chemical analysis and therefore, there is no assurance that Ext.P1 certificate relates to the liquid which was in the cans seized from the house. Crl.A.No.459/2008 6 11. _Per contra_ , learned Public Prosecutor contended that there is nothing to suspect that the samples were tampered with by any person and therefore, there can be no doubt with regard to the fact that Ext.P1 certificate of chemical analysis relates to the liquid contained in the cans seized from the house. 12. Seizure of the cans containing some liquid from the house does not prove the offence under Section 55(a) of the Abkari Act against the appellant. There is no reliable evidence to prove that the liquid contained in the cans was spirit or some other liquor. 13. PW5 has given evidence that he took sample of the liquid from each of the cans and sealed the sample bottles and the cans containing the residue. Ext.P2 search list also contains a recital to that effect. PW5 produced the properties, including the samples, in the court on 15.06.1998 as per Ext.P5 property list. The description of the properties given in Ext.P5 list does not show that the bottles, which contained the sample of liquid, were in a sealed condition or that there was any seal on them. It creates doubt as to whether the samples produced in the court Crl.A.No.459/2008 7 were the very same samples taken from the liquid contained in the cans seized from the house. 14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by PW5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala: 2016 (1) KLD 311 and Gopalan v. State of Kerala :2016 (2) KLD 469** ). 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 Crl.A.No.459/2008 8 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 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_ Crl.A.No.459/2008 9 _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). 18. The upshot of the discussion above is that the conviction entered and sentence passed against the appellant under Section 55(a) of the Abkari Act cannot be sustained. The appellant is entitled to be acquitted. 19. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offence and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr/27/08/2019 True Copy PS to Judge