Jithesh and Sumesh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 21[ST] DAY OF NOVEMBER 2022 / 30TH KARTHIKA, 1944** ## **CRL.A NO. 1688 OF 2008** **AGAINST THE JUDGMENT SC 849/2006 OF ADDITIONAL DISTRICT & SESSIONS** ## **COURT, VADAKARA** ## **APPELLANTS/ACCUSED NOSE.1 AND 2:** 1 JITHESH, AGED 29 YEARS, ALOLLATHIL HOUSE, KUNNUMMAL AMSOM DESOM. 2 SUMESH, AGED 32 YEARS, S/O.CHATHU, NELLIYULLA PARAMBATH HOUSE, NARIPATTA AMSOM DESOM, VATAKARA TALUK. BY ADVS. C.G.PREETHA ARJUN SREEDHAR ANISH.S P.RANI DIOTHIMA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1688 of 2006 2 ## -------------------------------------Criminal Appeal No.1688 of 2006 --------------------------------------Dated this the 21[st] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 11.07.2008, passed by the Additional District and Sessions Court, Vadakara in S.C.No.849/2006, the appellants/accused have preferred this appeal. The appellants were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 22.08.2004 around 3.15 p.m, the accused were found in possession of 35.460 litres of Indian Made Foreign Liquor, at Kayapanachi 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 55(a) 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, Crl.A No.1688 of 2006 3 charge was framed against them for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 9 and proved Exts.P1 to P11. 5. After the closure of the prosecution evidence, 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 evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants/accused for the aforesaid offence. 6. Heard Smt.C.G.Preetha, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Public Prosecutor appearing for the respondent. 7. PW1 prepared Ext.P1 seizure mahazar, wherein there is no mention of identification of any of the persons who were allegedly in Crl.A No.1688 of 2006 4 possession of the contraband substance. In Ext.P2, the crime and occurrence report, the Excise Inspector reported that they could not identify the persons who were in possession of the contraband substance seized. 8. The accused were later arrested on 09.09.2004 based on the information that accused No.1 was the registered owner of the vehicle involved and the other accused was travelling in the autorickshaw. PW1, the detecting officer and PW2, the preventive officer who had accompanied him, have not identified the persons who were allegedly possessing the contraband substance at the relevant time. They had any previous acquaintance with the accused. The prosecution has no case that the accused left the scene of occurrence in the presence of the official witnesses, who allegedly seized the vehicle and the contraband substance. Absolutely, there is nothing on record to show that the official witnesses identified the persons who were allegedly carrying the contraband substance at the scene of occurrence. 9. The Trial Court in paragraph 6 of the judgment recorded a finding that while stopping the autorickshaw at the place of 5 Crl.A No.1688 of 2006 occurrence, the detecting officer and the other officers who had accompanied him, had opportunity to see the persons carrying the contraband substance. This finding of the Trial Court is not based on any admissible materials placed before the Court. Exhibits P1 and P2, the two contemporaneous documents prepared by the detecting officer, do not mention the persons who allegedly possessed the contraband substance. None of the independent witnesses supported the prosecution case. The necessary conclusion is that the prosecution failed to show that the accused were carrying the contraband substance as pleaded by the prosecution. 10. No test identification parade was conducted in this case. While identifying the appellants in Court, the detecting officer and the officer who had accompanied him tried to improve the case by deposing that they had seen the accused at the scene of occurrence. This was found to be incorrect in view of the statement in the crossexamination and non mentioning of the identification features of the accused in the contemporaneous documents. In the seizure mahazar prepared at the scene of occurrence and in the occurrence report, there is specific mention that the name and details of the 6 Crl.A No.1688 of 2006 accused were not known. The necessary inference is that the official witnesses who identified the accused for the first time only in the Court is not admissible. This view is fortified by the decision of the Apex Court in Amrik Singh v State of Punjab [(2022) 9 SCC 402]. 11. The learned counsel further contended that the prosecution also failed to show that the liquor allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. The learned counsel contended that Ext.P1 seizure mahazar, wherein the details regarding the drawing of sample are narrated, does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. 12. The properties remained in the custody of the property clerk of the Court and also with the Excise guard Sri.K.S.Sureshkumar who delivered the sample to the laboratory. None of those officials were examined to establish the tamper-proof despatch of the sample to the laboratory. Non-examination of those officials is fatal to the prosecution. Crl.A No.1688 of 2006 7 13. Since the prosecution has failed to show that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P11 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. 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 has miserably failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are Crl.A No.1688 of 2006 8 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 and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS