Gnanaprakasam v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **CRL.A NO. 2496 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 279/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED NO.1:** GNANAPRAKASAM AGED 27, S/O.ARUMUGHAM,, OLIMEDABHAGATHU PADIYIL, KOLAPPALLY P.O., NEELGIRI DISTRICT, TAMILNADU. BY ADV SRI.MATHEW KURIAKOSE ## **- RESPONDENT/COMPLAINANT STATE:** STATE OF KERALA REP. BY EXCISE INSPECTOR,, (CRIME NO.28/04), MANANTHAVADY EXCISE RANGE, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2496 of 2006 2 ## **K.BABU, J.** -------------------------------------- **Criminal Appeal No.2496 of 2006** --------------------------------------Dated this the 2[nd] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 06-12-2006, passed by the learned Additional Sessions Judge (Adhoc-II), Kalpetta in Sessions Case No.279/2006, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act. 3. The prosecution case is that on 14-08-2004 at 6.30 p.m., the appellant (A1) and the other accused (A2) were found transporting 124.56 litres of Indian made foreign liquor in a Maruthi Omini Van bearing Registration No.TN-4B/8756 at Niravilppuzha. The Excise team led by PW1, Preventive Officer of Wayanad District Excise Enforcement and Anti Narcotic Squad, detected the offence. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Kerala Abkari Act before the JFCM-I, Mananthavady. The case was committed to the Sessions Court, 3 Crl.A No.2496 of 2006 Kalpetta from where it was made over to the Additional Sessions Court (Adhoc II), Kalpetta. On appearance of the accused charge was framed against them for the offence punishable under Section 55(a) of the Kerala Abkari Act. They pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MO1 series. 6. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They 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 they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial court, after hearing arguments addressed from both sides, found that the appellant (A1) is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of 3 years and to pay fine of Rs.1 Lakh. The accused No.2 was acquitted of the offence alleged. Crl.A No.2496 of 2006 4 7. Heard Sri.Mathew Kuriakose, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband articles allegedly recovered from the place of occurrence ultimately reached the hands of the Chemical Examiner. 9. 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. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the appellant/accused are sustainable or not. ## **The Point** 11. PW1, the Preventive Officer attached to Wayanad District Excise Enforcement and Anti Narcotic Special Squad, was the detecting officer. He has given evidence that on 14-08-2004 while he was on special duty at Pakrathalam forest check post along with PW2, they searched a Maruthi Omini Van bearing registration 5 Crl.A No.2496 of 2006 No.TN-4B/8756. The appellant/accused was driving the vehicle and the co-accused was sitting on the left side of the vehicle. In the search, according to PW1, the excise team recovered 372 bottles of Indian made foreign liquor. PW1 stated that the accused had no valid permit to transport the liquor that he possessed. PW1 arrested the accused and seized the articles found in the vehicle and prepared Ext.P2 seizure mahazar. PW1 collected sample at the scene of occurrence. He produced the accused and seized articles before the Excise Range Inspector, Mananthavadi. PW2 who had accompanied PW1 in the detection, supported the version of PW1. 12. PWs 3 and 4, the independent witnesses, also supported the prosecution case. 13. PW5, the Inspector of Mananthavadi Excise Range, received the articles at 12.45 in the noon from PW1. PW5 produced the articles and the accused before the Judicial First Class Magistrate, Mananthavadi on the same day. He further stated that as directed by the learned Magistrate the articles were taken back and produced before the court on 16-08-2004 as 15-08-2004 was holiday. PW5 added that the articles were in his custody until they were produced in court. PW5 prepared Ext.P4, Crl.A No.2496 of 2006 6 list of properties and Ext.P5, forwarding note. 14. PW6 completed investigation and submitted final report before the court on 13-12-2005. 15. Exhibit P6 is the certificate of chemical analysis prepared by the Chemical Examiner. 16. The learned counsel for the appellant contended that there are a series of infirmities in the prosecution evidence which lead to the conclusion that the prosecution failed to establish that the articles allegedly seized from the place of occurrence eventually reached the hands of the Chemical Examiner. 17. The learned counsel for the appellant submitted that lack of narration of the nature and description of the seal affixed on the bottles containing the sample in Ext.P2 seizure mahazar, raises doubt as to whether the sample stated to have been collected at the scene of occurrence was produced before the court and ultimately the same reached the Chemical Examiner's laboratory. Exhibit P2, seizure mahazar, is silent about the nature and description of the seal affixed on the bottle containing the sample. PWs 1 and 2 have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Narration of the nature and Crl.A No.2496 of 2006 7 description of the specimen seal, affixed on the sample at the scene of occurrence in the seizure mahazar, which is a contemporaneous document, would give assurance that the very same sample allegedly drawn at the scene of occurrence was produced before the court and the same was forwarded to the Analyst. 18. This Court in _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) considered a similar fact situation and held that the nature of the seal used shall be mentioned in the seizure mahazar. In _**Achuthan v. State of Kerala**_ (ILR 2016 (2) Ker 145) this Court held that 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. 19. Exhibit P5, forwarding note, was prepared on 14-08-2004 by the Excise Inspector, Mananthavadi. In Ext.P5 the Judicial Magistrate of First Class, Manathavadi has countersigned. But the learned Magistrate has not mentioned the date on which he initialled on Ext.P5 forwarding note. The name of Excise Guard with whom the sample was sent to the laboratory has not been mentioned in Ext.P5. The space meant for incorporating the name of the Excise Crl.A No.2496 of 2006 8 Guard or Preventive Officer with whom the sample is sent, remained vacant in Ext.P5. This would lead to the inference that on the date on which the learned Magistrate initialled on Ext.P5, no decision was taken as to with whom the sample had to be sent to the laboratory for analysis. While dealing with a similar fact situation this Court, in _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamperproof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For_ Crl.A No.2496 of 2006 9 _the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained. “_ 20. In _**Kumaran's case**_ (supra) this Court held that in cases where the learned Magistrate failed to mention the date on which he affixed his signature on the forwarding note and where the space meant for writing the name of official with whom the sample was sent to the laboratory remained vacant, it was imperative for the prosecution to examine the thondi clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. This Court concluded that the consequences of this infirmity is fatal to the prosecution and in such cases the accused is entitled to benefit of doubt. In the instant case, the court below ignored these vital aspects while appreciating the evidence. 21. Yet another consequence of the non mentioning of the date on which the learned Magistrate affixed his signature in Ext.P5 forwarding note is that this Court is put in the dark as to the date on which the official, who delivered the sample to the laboratory received the same from the court. Exhibit P6 certificate of analysis would show that the sample was delivered to the laboratory on 24-08-2004. In Ext.P6 the entry against the date of the letter of Crl.A No.2496 of 2006 10 learned Magistrate is seen struck off by the chemical examiner. Evidence regarding the date on which the learned Magistrate sent the sample to the laboratory and the date on which the Excise Guard referred to in Ext.P6 received the sample from the court is very vital while looking for assurance regarding the question whether the very same sample allegedly drawn at the scene of occurrence reached the hands of the Analyst in a tamper proof condition. It has come out in evidence that the samples changed several hands before reaching the public analyst. Neither the thondi clerk of the court nor the Excise Guard who received the sample from the court has been examined. It was imperative for the prosecution to examine these witnesses to establish the link evidence connecting the accused with the contraband substance allegedly seized from his possession. It is settled law that the prosecution can succeed only if it is established that the sample stated to have been drawn at the scene of occurrence ultimately reached the hands of the Chemical Examiner in a tamper proof condition {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314] and _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 22. The upshot of the above discussion is that the prosecution Crl.A No.2496 of 2006 11 failed to establish that the samples stated to have been collected from the scene of occurrence eventually reached the hands of the chemical analyst and consequently, the prosecution failed to connect the accused with the contraband substances. 23. Resultantly, the conviction and sentence passed against the accused are not sustainable. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS