Janaki v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 14[TH] DAY OF JUNE 2022 / 24TH JYAISHTA, 1944** ## **CRL.A NO. 2454 OF 2008** **AGAINST THE JUDGMENT DATED 03.10.2008 IN SC 137/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE** ## **APPELLANT:** JANAKI, D/O MOOTHORAN, RESIDING AT PATALIYIL HOUSE,, CHATHAMANGALAM, KOZHIKODE DISTRICT. BY ADV V.N.RAMESAN NAMBISAN ## **RESPONDENT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SENIOR PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.Appeal No.2454 of 2008** 2 ## **K.BABU, J** . ---------------------------------Criminal Appeal No.2454 of 2008 ---------------------------------- **Dated this the 14[th ] day of June, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 03.10.2008, passed by the Additional District & Sessions Court, Fast Track (Adhoc-II), Kozhikode in Sessions Case No.137/2006, the appellant/accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.03.2004 at 5.30 pm, the appellant/accused was found in possession of 2 litres of arrack in a can at Chathamangalam in violation of the provisions of the Abkari Act. 3. 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 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 charge was framed against her for the offence punishable under **Crl.Appeal No.2454 of 2008** 3 Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and Exts. P1 to P5 and M.O. 1 were marked. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted her thereunder. 6. Heard Sri.V.N.Ramesan Nambisan, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- **Crl.Appeal No.2454 of 2008** 4 1. The prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance at the scene of occurrence. 2. The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was produced before the Chemical Examiner's Laboratory for analysis. 3. The officer who detected the offence was incompetent to effect seizure. 8. According to the prosecution, on 29.03.2004, at the place of occurrence, the accused was found carrying 2 litres of illicit arrack in a can. The appellant/accused was not arrested from the scene. The explanation given by the detecting officer (PW1) is that, no woman police constables were available to arrest the appellant. The detecting officer and the Excise guard who had accompanied him had no previous acquaintance with the accused. The official witnesses who supported the prosecution had no opportunity to identify the accused after the incident. They identified the accused after a long lapse of 4 years, in 2008. **Crl.Appeal No.2454 of 2008** 5 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 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. In the present case, no test identification parade was conducted. Therefore, identification of the accused by the official witnesses cannot be accepted. 11. After the recovery, the articles, including the sample were produced before the Court. The sample remained in the custody of property clerk of the Court. There is no evidence to show the date **Crl.Appeal No.2454 of 2008** 6 on which the sample was forwarded to the laboratory. An Excise guard by name, Abdul Jabbar produced the sample in the Chemical Examiner's Laboratory on 02.04.2004. The property clerk of the Court and the Excise guard, who delivered the sample to the laboratory, were not examined by the prosecution. Non-examination of the officials who handled the sample during its transit from the Court to the laboratory would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view was fortified by decision of the Apex court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 12. This Court in **Sasidharan v. State of Kerala** [2007 (1) KHC 275] held that in cases where sample changed several hands the prosecution can succeed only if it is established that it ultimately reached the hands of the Chemical Examiner in a tamper-proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. In the instant case, due to non-examination of the above referred officials who, handled the sample, the prosecution failed to establish that the sample ultimately reached the hands of the Chemical Examiner in a **Crl.Appeal No.2454 of 2008** 7 tamper-proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. 13. The resultant conclusion is that the prosecution failed to show that the sample which was seized from the place of occurrence was subjected to analysis in the laboratory. Therefore, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. The prosecution, therefore, failed to establish the link connecting the accused with the contraband seized. 14. 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 to various officers under the Abkari Act. In the present case, the offence was detected by PW1, a Preventive Officer of Excise Enforcement and Narcotic Special Squad, Kozhikode. The detection was made on 29.03.2004. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari **Crl.Appeal No.2454 of 2008** 8 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, the 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 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. 15. The learned counsel for the appellant/accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. **Crl.Appeal No.2454 of 2008** 9 16. The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh's** case (supra) held that a case built up on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 17. 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 guilty of the offence punishable under Section 8(2) of the Abkari Act. She is acquitted of the offence alleged against her. She is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K.BABU** **JUDGE** AJ/14.06.2022