Jalal v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 31[ST] DAY OF AUGUST 2022 / 9TH BHADRA, 1944 CRL.A NO. 2103 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 29.09.2007 IN SC 97/2007 OF ADDITIONAL SESSIONS COURT (SPECIAL COURT FOR NDPS ACT CASES), THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` JALAL, S/O IBRAHIM, PUTHENPURACKAL HOUSE, MUTTOM KARA, MUTTOM VILLAGE, THODUPUZHA. ``` ``` BY ADV SRI.M.V.SABU ``` ## **`RESPONDENT/COMPLAINANT:`** - `1 STATE OF KERALA, REPRESENTED BY THE THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM.` ``` 2THE SUB INSPECTOR OF POLICE, KANJAR, THODUPUZHA. ``` ``` BY ADV SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2103 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2103 of 2007 --------------------------------------------- ## Dated this the 31[st] day of August, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 29.09.2007, passed by the Additional Sessions Court (Special Judge for NDPS Act cases), Thodupzha in Sessions Case No.97/2007, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 14.06.2005 at 7.30 p.m., the accused was found in possession of 1.5 litres of Indian Made Foreign Liquor for sale in his vegetable shop at Muttom junction in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences ``` Crl.A.No.2103 of 2007 ``` ``` 3 ``` punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P10 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, 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 adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(a) and 55(i) of the Abkari Act and convicted him thereunder. 6. Heard Sri. M.V.Sabu, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondents. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds:- (1) The prosecution failed to establish the identity of the person who was allegedly in possession ``` Crl.A.No.2103 of 2007 ``` ``` 4 ``` of the contraband substance at the place of occurrence. (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 14.06.2005 from a vegetable shop at Muttam. PW3, the Sub Inspector of Police, Kanjar detected the offence. According to PW3, on getting reliable information that accused was engaged in the sale of foreign liquor at his vegetable shop, the Police team headed by him proceeded to the place of occurrence. On seeing the Police party the accused ran away from the scene. The Police could not effect the arrest of the accused. In the subsequent seizure, the contraband substance was recovered from the shop. PW3 has no case that he had any previous acquaintance with the accused. The independent witnesses did not support the prosecution. PW3 had no opportunity to identify the accused after the incident. Going by his evidence he had only a fleeting glimpse of the person who ran away from the scene of occurrence. 9. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous ``` Crl.A.No.2103 of 2007 ``` ``` 5 ``` test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So on this ground alone the prosecution must fail. 10. The learned counsel for the appellant further contented that the prosecution failed to bring in any material to connect the accused with the contraband substance seized. Apart from the interested oral testimony of PW3 that the shop from where the contraband was recovered was in the possession of the accused, no convincing material was placed by the prosecution to prove the same. 11. PW5, the then Secretary of the Muttam Grama Panchayath stated that, he could not say as to whether the accused was conducting a vegetable shop on the relevant date. The contents of Ext. P10 has not been proved. The prosecution has not produced any admissible evidence to show that the accused had ``` Crl.A.No.2103 of 2007 ``` ``` 6 ``` been running or conducting a shop as pleaded. Therefore, the prosecution failed to establish the possession of the contraband substance by the accused. 12. The liquor allegedly seized from the place of occurrence was produced before the Court on 15.06.2005. The Junior Superintendent of the Court concerned received the properties including the sample. Ext.P8, copy of the forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. Ext.P9, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory on 06.07.2005 from the Court concerned. The sample reached the laboratory on 07.07.2005 through a Police Constable No. 2300. The sample was subjected to analysis only on 16.10.2006. The sample remained in the custody of the Junior Superintendent of the Court, the Property Clerk of the Court, the Police official who received the sample from the Court and the Police official who delivered the same in the laboratory. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it remained in the hands of the officials concerned. This view is supported by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)]. ``` Crl.A.No.2103 of 2007 ``` ``` 7 ``` 13. The prosecution has failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical examiner’s Laboratory. Therefore, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 14. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 15. 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 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]}. 16. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 17. The upshot of the above discussion is that the ``` Crl.A.No.2103 of 2007 ``` ``` 8 ``` prosecution failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence and the possession of the same by accused and that the contraband substance allegedly recovered from the place of occurrence was subjected to chemical analysis. Resultantly, the conviction and sentence passed by the trial Court, cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK