Jayan @ Kuzhiyana Jayan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 CRL.A NO. 2926 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 2133/2006 OF ADDITIONAL SESSIONS JUDGE (FAST TRACK) (ADHOC)-IV, ``` ``` THIRUVANANTHAPURAM ``` ## **`APPELLANT/ACCUSED:`** ``` JAYAN @ KUZHIYANA JAYAN S/O.SADANANDAN, TC. 13/942,, BARTONHILL COLONY, KUNNUKUZHY,, THIRUVANANTHAPURAM. BY ADV G.SUDHEER ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SR PP SMT.REKHA.S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2926 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 26.11.2008, passed by the Additional Sessions Court, Fast Track (Adhoc) No. IV, Thiruvananthapuram in Sessions Case No.2133/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 04.08.2004, the accused was found in possession of 35 litres of arrack at Mulavana 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 ``` CRL.A NO. 2926 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the Sessions Court 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. 4. The prosecution examined PWs.1 to 7 and proved Exts. P1 to P6. 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. 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. 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 him ## **`CRL.A NO. 2926 OF 2008`** **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri. G. Sudheer, 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:- - (i) The prosecution has failed to establish the genuineness of the contraband substance produced before the Court. - (ii)The act of the property clerk drawing the sample from the bulk quantity of the contraband substance produced before the Court has no sanction of law. - (iii) There is no guarantee that the contraband seized from the place of occurrence was forwarded to the Chemical Examiner’s ``` CRL.A NO. 2926 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Laboratory. 8. The learned counsel for the appellant/accused submitted that the prosecution has not succeeded in proving that the contraband allegedly seized from the place of occurrence reached the Court in a tamper-proof condition. The learned counsel submitted that Ext.P1 seizure mahazar prepared to evidence arrest and seizure does not contain the nature and description of the seal affixed on the contraband. The detecting officer, PW4, has also not given evidence as to the nature of the seal used. No specimen seal was produced before the Court to ensure the genuineness of the contraband produced before the Court. 9. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the court so as to enable the court to satisfy the ``` CRL.A NO. 2926 OF 2008 ``` ..6.. genuineness of the sample produced in the court. 10. The learned counsel further contended that the procedure adopted in drawing the sample has no sanction of the law. Admittedly, the detecting officer had not drawn sample at the scene of occurrence. He produced the bulk quantity of the arrack before the Court and thereafter he requested as per Ext.P6 to the learned Magistrate to draw the sample from the contraband produced before the Court. PW6, the property clerk of the Court stated that he had drawn the sample from the arrack produced before the Court and forwarded the same to the laboratory. On the legality of drawing the sample and sealing the same by the officer of the Court as per the instructions of the learned Magistrate was considered by this Court in **Baburaj v. State of Kerala** [2021 6 KHC 92]. In **Baburaj v. State of Kerala** this Court held thus:- “35. Drawing the sample and sealing the same are ``` CRL.A NO. 2926 OF 2008 ``` ..7.. acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala** [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala** [2020 (2) KLT 590], this Court had an ``` CRL.A NO. 2926 OF 2008 ``` ..8.. occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer. “ 11. In **Baburaj v. State of Kerala** (supra), this Court further held that the procedure adopted in drawing the sample from the contraband substance produced before the Court by the property clerk of the court is not ``` CRL.A NO. 2926 OF 2008 ``` ..9.. a procedure established by law. Therefore, Ext.P8 Certificate of Chemical Analysis obtained based on the sample so drawn has no evidentiary value. 12. The learned counsel further contended that specimen of the seal affixed on the bottle containing the sample by the property clerk of the Court had not been forwarded to the Chemical Examiner’s Laboratory for verification. Ext.P7 forwarding note shows that the space meant to affix the specimen seal remains vacant. PW6, the property clerk also has not given evidence to the effect that the specimen of the seal affixed was forwarded to the laboratory. 13. 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, ``` CRL.A NO. 2926 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** no evidentiary value can be attached to the chemical analysis report. 14. Therefore, in the instant case, the prosecution failed to show that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The resultant conclusion is that Ext.P8 Certificate of Chemical Analysis has no evidentiary value on this ground also. Therefore the prosecution failed to connect the accused with the contraband seized. 15. 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 found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, ## (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; ``` CRL.A NO. 2926 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iii) The accused is acquitted of the charge ; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj