Imbichutty @ Vichutty S/o Velayudhan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **CRL.A NO. 2253 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 264/2006 OF ADDITIONAL** **DISTRICT AND SESSIONS COURT (ADHOC)-II, MANJERI CP 114/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS,** ## **PARAPPANANGADI** ## **APPELLANT/ACCUSED:** **IMBICHUTTY @ VICHUTTY S/O VELAYUDHAN, PALAKKAPARAMBIL HOUSE, VELIPRAM, RAMANATTUKARA, KOZHIKKODE DISTRICT.** **BY ADV SRI.BABU S. NAIR** ## **RESPONDENT/STATE:** **THE STATE OF KERALA REP. BY THE EXCISE INSPECTOR, PARAPPANANGADI EXCISE RANGE-, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI - 31 BY ADV PUBLIC PROSECUTOR SMT. REKHA. S. (SR.P.P)** THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 2253 of 2007 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.2253 of 2007 --------------------------------------Dated this the 20[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 03.11.2007, passed by the Additional District and Sessions Judge (Adhoc) No.II, Manjeri in S.C No.264/2006 the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 22.06.2004 at about 5.45 p.m the accused was found in possession of 10 litres of illicit arrack in a plastic can on the Panchayath road in front of the residence of one Rajan at Chelambra. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Crl.A No. 2253 of 2007 3 Parappanangadi. The case was committed to the Sessions Court, Manjeri from where it was made over to the trial Court. On the 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 to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MO1. 6. After the 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 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. DW1 was examined on the side of the defence. The trial court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under section 4 Crl.A No. 2253 of 2007 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1 Lakh for the aforesaid offence. 7. Heard Sri.Babu.S.Nair, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused contended that the charge against the accused falls to ground on the reason that an incompetent officer detected the offence. The learned counsel further submitted that the prosecution also failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution succeeded in establishing the charge against the accused. 10. The offence in this case was detected by PW3, a 5 Crl.A No. 2253 of 2007 Preventive Officer attached to Excise Enforcement and Anti Narcotic Special Squad, Malappuram. On the date of occurrence, the excise team led by PW3 was on patrol duty and when the excise team reached the place of occurrence the accused was found carrying a plastic can. On verification, it was found that it contained 10 litters of illicit arrack. The accused was arrested as per Ext.P5 arrest memo and the contraband substance was seized by way of Ext.P1 seizure mahazar. The excise officials collected 375 ml of arrack in a bottle and sealed the same to be used as sample. The accused and the contraband substance along with the contemporaneous documents prepared at the scene of occurrence were entrusted to the Excise Range Office, Malappuram. PW5, the Excise Inspector, Excise Enforcement Squad and Narcotic Special Squad, Malappuam conducted investigation and submitted final report. 11. The learned counsel for the appellant submitted that the prosecution failed to establish that the 6 Crl.A No. 2253 of 2007 contraband substance allegedly recovered from the place of occurrence, eventually reached the Court and thereafter the Chemical Examiner's Laboratory. The learned counsel submitted that Ext.P1 mahazar does not contain the nature and description of the seal stated to have been used by the detecting officer. Ext.P1 does not contain any narration of the seal stated to have been affixed on the bottle containing the sample. The prosecution failed to produce the specimen of the seal before the Court so as to ensure the genuineness of the sample produced. 12. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and in **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 and that the nature of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be 7 Crl.A No. 2253 of 2007 produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced. 13. In the present case, the detecting officer has not given evidence as to the nature of the seal used. Another aspect that requires consideration is that the prosecution has not produced the forwarding note/requisition for sending sample to the laboratory, before the Court. 14. In **Rajamma v. State of Kerala** (2014 (1) KLT 506), this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. 15. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the illicit arrack allegedly seized 8 Crl.A No. 2253 of 2007 from the place of occurrence was eventually brought to the Chemical Examiner's Laboratory. The learned counsel, relying on a series of precedents, contended that the prosecution also failed to establish the link evidence to ensure that the chain of allegations against the accused is established as required by law. 16. The detecting officer (PW3) has admitted in his examination that he had not narrated the nature of the seal affixed on the bottle contained in the sample. I have gone through Ext.P1 seizure mahazar which does not contain any narration as to the nature of the seal affixed on the sample. The specimen of the seal affixed on Ext.P1 seizure mahazar is not legible. 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 should be mentioned in the seizure mahazar (vide: _**Bhaskaran K v. State of Kerala** [2020 KHC 5296])_ . 17. The prosecution has not produced any evidence Crl.A No. 2253 of 2007 9 as to the date on which the sample was forwarded to the Chemical Examiner's Laboratory. Ext.P3, the copy of the forwarding note shows that the sample was forwarded to the laboratory through an Excise Guard by name P.Sathyanathan on 23.06.2004. Ext.P7, the certificate of chemical analysis shows that the sample was received in the laboratory only on 23.07.2004. The prosecution has not given any satisfactory explanation for the delay in bringing the sample to the laboratory after obtaining it from the Court. 18. 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 Crl.A No. 2253 of 2007 10 representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 19. In the absence of any satisfactory explanation for the delay in 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. 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 the contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related. 21. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 23.07.2004, it was subjected to analysis only on 28.09.2005. On the question of delay in the analysis of sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: Crl.A No. 2253 of 2007 11 “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.” 22. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 23. 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 Crl.A No. 2253 of 2007 12 said to have been seized from the possession of the accused. 24. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 25. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers on various officers under the Abkari Act. In the present case, the offence was detected by PW3, a Preventive Officer of Excise Enforcement and Narcotic Special Squad, Malappuram. The detection was made on 22.06.2004. The Government notification issued as 13 Crl.A No. 2253 of 2007 SRO.No.234/1967 had authorised various categories of Excise Officials to discharge various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion 14 Crl.A No. 2253 of 2007 is that as on the date of detection in the present case, the detecting officer, who was a Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 26. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 27. The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KLT 765] to substantiate his contentions. While dealing with a similar fact situation, this Court in **Suresh's case** (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 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 Crl.A No. 2253 of 2007 15 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 The appeal is allowed as above. Sd/K.BABU, JUDGE rpk