Jayakumar Cherukadukalathil Veedu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF SEPTEMBER 2021 / 8TH ASWINA, 1943** **CRL.A NO. 1559 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1149/2005 OF ADDITIONAL SESSIONS** **JUDGE, FAST TRACK COURT NO.II, PALAKKAD,** ## **APPELLANT:** **JAYAKUMAR CHERUKADUKALATHIL VEEDU, ERUMBAKASSERY DESOM, THIRUMITTAKODE VILLAGE, OTTAPALAM TALUK.** **BY ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVINDRANATH** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** ## **SRI MC ASHI-PP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1559 OF 2007** **2** ## **K.BABU, J.** =================== **Crl. A. No. 1559 of 2007** =================== Dated this the 30[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 18.08.2007, passed by the Additional Sessions Judge (Fast Track Court-II), Palakkad in SC.No.1149/2005, 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 17.10.2000 at about 5.30 p.m., the accused was found in possession of 1 ½ litres of arrack in a plastic can near Valiyakulam on the Erumbakassery-Varavattoor road in contravention of the provisions of the Abkari Act. 4. After completion of the investigation, the final **CRL.A NO. 1559 OF 2007** **3** report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate, Pattambi. The case was committed to the Sessions Court, Palakkad from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P10 and MO 1. Exts. D1 and D2 were marked on the side of the defence. 6. After 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 that there was 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. The trial court, after **CRL.A NO. 1559 OF 2007** **4** hearing the arguments addressed from both sides, found that the accused is guilty of offence punishable under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1 lakh. 7. Heard Sri. P. K Mohanan, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was actually subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that, sufficient materials are there to establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed **CRL.A NO. 1559 OF 2007** **5** against the accused/appellant are sustainable or not. 11. PW1, the Excise Preventive Officer, Trithala Excise Range detected the offence. On 17.10.2000 he was on patrol duty. When the excise team reached Valiyakulam, they found the accused carrying a 2 ½ litre can. PW1 inspected the can and found that it contained 1 ½ litres of illicit arrack. PW1 seized the contraband substance from the possession of the accused as per Ext.P1 seizure mahazar. He collected 300 ml of arrack from the can in a 375 ml bottle to be used as sample. The accused was arrested from the spot. PW1 produced the accused and the contraband substance along with contemporaneous documents before the Excise Inspector, Trithala. PW2, a Preventive Officer in the excise team at the time of search and seizure, supported the prosecution. 12. PW3, the independent witness examined to prove the incident proper, did not support the prosecution. PW4 conducted the investigation and submitted the final report. 13. The learned counsel for the appellant/accused **CRL.A NO. 1559 OF 2007** **6** contended that, the prosecution failed to establish the genuineness of the sample produced in the court, as the detecting officer failed to narrate the nature and description of the seal used at the scene of occurrence in Ext.P1 seizure mahazar and also that, he failed to give evidence regarding the nature of the seal used. I have gone through Ext.P1 seizure mahazar and the oral evidence of PW1. He failed to give evidence as to the nature of the seal stated to have been affixed on the bottle containing the sample. Ext.P1 seizure mahazar also is silent regarding the nature of the seal used. 14. _**In Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), in _**Krishnadas v. State of Kerala**_ [2019 KHC 191], and in _**Achuthan v. State of Kerala**_ [2016 (1) KLD 391 = ILR 2016 (2) Ker 145] this Court held that the detecting officer who drew the sample, has to give evidence as to the nature and description of the seal used and the seizure mahazar being a contemporaneous document shall contain the nature and the description of the seal. The **CRL.A NO. 1559 OF 2007** **7** requirement of the nature and description of the seal is to satisfy the Court regarding the genuineness of the sample produced before the Court. The learned counsel for the accused further contended that, there is every possibility that the sample which was forwarded from the Court was not the sample subjected to examination in the laboratory. The learned counsel brought to my notice the entry in Ext.P8 to the effect that the sample received on 02.03.2001 was subjected to analysis in the laboratory. Ext.P8 specifically mentions that the sample received through Excise Guard by name Sri. T. Augustine Raj on 02.03.2001 was subjected to analysis. But, Ext.P8 further shows that, the sample in the instant case was forwarded only on 17.10.2001 as per letter No. 285/2001 of Judicial First Class Magistrate, Pattambi. The necessary conclusion is that, the sample which was received in the laboratory even prior to the one forwarded from the Court was subjected to analysis. The prosecution has not offered any explanation for these discrepancy. This Court **CRL.A NO. 1559 OF 2007** **8** comes to the conclusion that in view of this discrepancy no evidentiary value can be given to Ext.P8 certificate of chemical analysis. The learned counsel for the accused further contended that, the prosecution failed to establish the link connecting the contraband substance with the accused, in view of the non-examination of the Excise Inspector, Trithala, who received the sample and forwarded the same to the Court, the property clerk of the Court and the Excise Guard, who delivered the sample to the laboratory. Ext.P3 property list and Ext.P4 Crime and occurrence report show that the sample was in the custody of Excise Inspector, Trithala and it was he who forwarded the sample to the Court. Admittedly, the sample remained in the possession of the property clerk of the Court. The sample was delivered to the laboratory by Sri. T. Augstine Raj, as is evident from Ext.P8. The prosecution failed to examine these three officials. In _**State of Rajasthan v. Daulat Ram**_ [AIR 1980 SC 1314] the Apex Court held that where the sample changed several hands, the **CRL.A NO. 1559 OF 2007** **9** prosecution has to examine those officials who handled the sample to establish that the sample remained tamper-proof while in their custody. In the instant case, due to the nonexamination of those officials who handled the sample during the different stages, the prosecution failed to establish the tamper-proof dispatch of the sample from the Court to the laboratory. 15. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 16. 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 said to have been seized from the possession of the accused. In the instant case, the **CRL.A NO. 1559 OF 2007** **10** prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is definitely entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. The upshot of the above discussion is that the conviction entered by the Court 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 and is acquitted of the charge. He is set at liberty. This Crl.Appeal is allowed as above. **Sd/K.BABU, JUDGE** LU