Jiji and Velayudhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **CRL.A NO. 321 OF 2006** **AGAINST THE JUDGMENT IN SC 68/2005 OF ADDITIONAL SESSIONS** **JUDGE (ADHOC-I), ERNAKULAM** ## **APPELLANT/ACCUSED NOS.1 AND 2:** **1 JIJI, S/O. CHANDRAN, AGED 29 YEARS PIRAYAMPILLY HOUSE, ANCHAL DESOM, KARUMALLUR, PARAVUR.** **2 VELAYUDHAN, AGED 69 YEARS S/O.UNNIMAYILAN, PIRAYAMPILLY HOUSE, ANCHAL DESOM, KARUMALLUR, PARAVUR.** **BY ADV SRI.K.SUNILKUMAR** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REP. BY THE THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 321 OF 2006** 2 ## **K. BABU J.** **------------------------------------** ## **Crl.A.No.321 of 2006** **------------------------------------** Dated this the 10[th] day of August, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 06.02.2006, passed by the learned Additional Sessions Judge, (Adhoc-I), Ernakulam in SC.No.68/2005, the two accused have preferred this appeal. 2. The trial court convicted the accused for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Kerala Abkari Act. 3. The prosecution case is that on 13.12.2002, the accused were found distilling arrack in the landed property owned by Adv.Menachery Jose at Vennappilly Parambu. The Excise Inspector, Paravur Excise Range detected the offence. 4. Final report was submitted against the accused **CRL.A NO. 321 OF 2006** 3 for the offences punishable under Sections 8(2), 55(b) and 55(g) the Abkari Act before the Judicial First Class Magistrate Court-I, Aluva. 5. The case was committed to the Sessions Court, Ernakulam, from where it was made over to the Trial court. On appearance of the accused charges were framed against them for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 7 and Exts.P1 to P11. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They 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 they were called upon to enter on their defence and to adduce evidence, if any, they may have in support **CRL.A NO. 321 OF 2006** **==> picture [7 x 9] intentionally omitted <==** thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offences under Sections 8(2), 55(b) and 55(g) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo rigorous imprisonment for a term of six months each and to pay a fine of Rs.1,00,000/- each. 8. Heard Sri. K.Sunil Kumar, the learned counsel appearing for the appellants/accused and Sri.M.C.Ashi the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellants/accused raised the following grounds: - (a) The prosecution failed to establish the identity of the persons who were allegedly possessing the contraband substance at the scene of occurrence. - (b) Prosecution has not satisfactorily explained the delay in the production of the properties including the sample before the court. **CRL.A NO. 321 OF 2006** 5 - (c) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 12. On 13.12.2002, PW1 got reliable information that arrack was being distilled in the landed property owned by Adv.Menachery Jose at Vennappilly Parambu. PW1 gave evidence that he reached the place of occurrence at 09.10 a.m., and halted the Jeep about 30 feet away and walked towards the scene. When the Excise team led by PW1 reached near the place of occurrence, both the accused, **CRL.A NO. 321 OF 2006** 6 on seeing them, jumped into the nearby Anachal canal and swam across and escaped. PW1 seized 6400 liters of Wash, 43 liters of arrack and other utensils used for distilling arrack from the place of occurrence. PW1 collected 300 ml of arrack in a 375 ml bottle and 750 ml of Wash in a 1 liter bottle as sample and sealed the same. PW1 prepared Ext.P1 seizure mahazar. PW2, an assistant Excise Inspector, who had accompanied PW1, supported the version of PW1. 13. PW3 and PW6, the independent witnesses, examined to prove the incident proper, did not support the prosecution case. PW7 conducted part of the investigation. PW8 completed the investigation and submitted final report before the Court. 14. The learned counsel for the appellants/accused contended that the prosecution has not offered any satisfactory explanation for the delay in the production of the bottles containing the sample before the court. The seizure was effected on 13.12.2002. The articles **CRL.A NO. 321 OF 2006** **==> picture [7 x 9] intentionally omitted <==** including the sample were produced before the court only on 16.12.2002. The explanation for the delay is that as numerous articles were to be produced, the same could not be produced before the court before 16.12.2002. The explanation for the delay, in the production of the properties as far as the articles excluding the bottle containing the sample are concerned may be acceptable. But the explanation offered by PW1 cannot be accepted, as far as the delay in the production of the bottle containing the sample is concerned. 15. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed **CRL.A NO. 321 OF 2006** 8 ## production of the property.” (Emphasis supplied) 16. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in the production of the sample before the court. The unexplained delay in the production of sample would lead to the conclusion that tampering with the sample could not be ruled out. 17. Learned counsel for the appellants/accused contended that the prosecution failed to establish the identity of the persons who were carrying the contraband substance at the scene of occurrence. According to the prosecution, on seeing the Excise team, the accused jumped into the nearby canal and escaped. Accused No.2 was arrested on 12.04.2003. Accused No.1 was not arrested. The official witnesses including the detecting officer have no case that they had any previous **CRL.A NO. 321 OF 2006** 9 acquaintance with the accused. PW1 admitted that they verified the identity of the person who ran away from the scene from the witnesses present at the place of occurrence at the time of seizure. In Ext.P1 seizure mahazar, PW1 failed to narrate any of the identifying features of the accused. The accused were implicated on the basis of the information furnished by the independent witnesses, who did not support the prosecution case. It is true that the accused No.2 was arrested on 12.04.2003, four months after the incident. The evidence of the independent witnesses is crucial to establish the identity of the accused as they were not arrested from the spot, especially in view of the specific case of the prosecution that it was on the basis of the information given by the independent witnesses, the present accused were implicated in the crime. The fact that accused No.2 was arrested 4 months after the incident and both of them were identified in the box by PWs.1 and 2, who had no previous acquaintance with the accused, will not help the **CRL.A NO. 321 OF 2006** 10 prosecution to establish the identity of the accused. 18. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during the trial. 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 power of observation (vide: **Jameel v. State of Maharashtra** [AIR (2007) SC 971], **Raja v. State by Inspector of Police** [AIR (2020) SC 254], **Kannan and Others v. State of Kerala** [AIR (1979) SC 1127], **State (Delhi Administration) v. V.C.Shukla and Another** [AIR (1980) SC 1382], **Mohanlal Gangaram Gehani v. State of Maharashtra** [AIR (1982) SC 839], **Mohd. Abdul Hafeez v. State of AP** [AIR (1983) SC 367]. 19. The accused No.1 was identified in the box by PWs.1 and 2 in 2006, after a long lapse of 4 years. PWs. 1 and 2 had only a fleeting glimpse of the accused just before they jumped into the canal. PWs.1 and 2 had no **CRL.A NO. 321 OF 2006** 11 opportunity to identify the accused No.1 after the incident. 20. As far as accused No.2 is concerned, though he was arrested 4 months after the incident, as the detecting officer failed to narrate any of his identifying features in Ext.P1 seizure mahazar and he mainly relied on the information given by the independent witnesses, who did not support the prosecution during trial, the possibility that PWs 1 and 2 committed a mistake in the identification of accused No.2 cannot be ruled out. 21. The resultant conclusion is that prosecution failed to establish the identity of the persons who were found in possession of the contraband substance at the place of occurrence. 22. The learned counsel for the appellants/accused further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually **CRL.A NO. 321 OF 2006** 12 subjected to analysis at the Chemical Examiner's laboratory. 23. PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, is silent regarding the nature and description of the seal affixed on the bottle containing the sample. The specimen impression of the seal used by the detecting officer had not been produced before the court. 24. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and **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 bottles containing the sample. 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 produced in the court so as to enable the court to satisfy the genuineness of the **CRL.A NO. 321 OF 2006** 13 ## sample produced in the court. 25. In **Rajamma v. State of Kerala** [2014 (1) KLT ## 506], this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 26. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P5 chemical analysis report. 27. Ext.P4, copy of the forwarding note, does not contain the name of official with whom the samples were **CRL.A NO. 321 OF 2006** 14 forwarded to the laboratory. As mentioned earlier the specimen impression of the seal has also not been affixed in Ext.P4. The learned Magistrate has not written the date on which he put his initial on Ext.P4. 28. Ext.P5 would show that the bottles containing the sample were delivered to the Chemical Examiner through an Excise Guard, V.D.Varghese. In the absence of the name of the official with whom the sample was forwarded to the laboratory in Ext.P5 and the date on which the sample was forwarded it was imperative for the prosecution to examine either the property clerk of the court or the Excise official concerned to establish the tamper proof despatch of the sample to the laboratory. (see: **Kumaran v. State of Kerala** [2016 (4) KLT 718]) 29. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. **CRL.A NO. 321 OF 2006** 15 30. 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. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 31. 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 benefit of doubt arising from the absence of link evidence as discussed above. 32. 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 appellants/accused Nos.1 & 2 are **CRL.A NO. 321 OF 2006** **==> picture [13 x 9] intentionally omitted <==** therefore not guilty of the offences punishable under Sections 8(2), 55(b) and 55(g) of the Kerala Abkari Act. They are acquitted of the charges levelled against them. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS