Joy v. State of Kerala

Crl.A No.2363 of 2006 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943** **CRL.A NO. 2363 OF 2006** **AGAINST THE JUDGMENT IN SC 1055/2000 OF ADDITIONAL SESSIONS** **COURT, FAST TRACK (ADHOC)-II, THIRUVANANTHAPURAM APPELLANT/ACCUSED:** **JOY, S/O SEELAS MYLADUM VEEDU, PUTHUKULANGARA DESOM,, UZHAMALAKKAL VILLAGE** . BY ADV M.SREEKUMAR ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2363 of 2006 2 ## **K.BABU, J.** **========================= Crl.A No.2363 of 2006 ==========================** Dated this the 12[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 20.10.2006, passed by the Additional Sessions Judge, Fast Track (Adhoc) II, Thiruvanathapuram in S.C.No.1055/2000, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 8.8.1997 at 5 pm., in the evening, the accused was found in possession of 2 litres of arrack in a jerry can having a capacity of 2.5 litres near Pongalli bridge in Puthukulangara Desom in Uzhamalackal Village. 3. After completing investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court I, Nedumangad. The case was committed to the Sessions Court, Thiruvananthapuram from where it was Crl.A No.2363 of 2006 3 made over to the Additional Sessions Court, Fast Track, (Adhoc) II, Thiruvananthapuram. On 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 and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MO1. 5. 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 is 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Abkari Act. 6. Heard Sri.M.Sreekumar, the learned counsel Crl.A No.2363 of 2006 4 appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant canvassed the following grounds to challenge judgment of conviction: i) The delay in the production of the articles allegedly seized from the possession of the accused has not been satisfactorily explained. ii) The prosecution failed to establish that the articles said to have been seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. 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 10. PW4, the Excise Circle Inspector, Nedumangad on 8.8.1997 at 5 pm., detected the offence. PW4 has given evidence that on 8.8.1997 around 5 pm., while the excise party Crl.A No.2363 of 2006 5 led by him was on patrol duty, the accused was found carrying a white can through the Charumoodu-Ayyappankuzhi Public Road. PW4 seized the white can from the possession of the accused and found that it contained illicit arrack. PW4 arrested the accused at the spot. He prepared Ext.P1 seizure mahazar. PW4 has further given evidence that he sealed the can seized from the possession of the accused.PW1, the Excise Preventive Officer, who had accompanied PW4, supported the prosecution case. 11. PW3, the independent witness, did not support the prosecution version. PW5, the Excise Inspector, has given evidence that he registered Ext.P5 crime on the basis of Ext.P1 seizure mahazar and the report of PW4. PW5 produced the accused before the learned Magistrate on 8.8.1997 itself. PW5 has given evidence that the contraband substance sealed in MO1 can was produced before the court only on 12.8.1997. 12. The learned counsel for the appellant/accused submitted that the contraband substance allegedly recovered from the possession of the accused on 8.8.1997 was produced before the court only on 12.8.1997 and that the delay in the production of the property has not been satisfactorily explained. Crl.A No.2363 of 2006 6 PW4, the detecting officer entrusted the contraband substance to PW5, Excise Range Inspector, Nedumangad. PW5 has given evidence that the delay caused in the production of the properties was due to the reason that the days between 8.8.1997 and 12.8.1997 were holidays. Ext.P5 crime and occurrence report shows that the same was produced before the court on 9.8.1997 itself. In Ext.P5 there is a specific mention of the contraband substance. PW5 failed to give any satisfactory explanation as to what prevented him to produce the contraband substance before the court on 9.8.1997. Therefore, the explanation offered by PW5 for the delay in the production of the contraband substance is not acceptable. 13. 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: “8(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 production of the property.” (Emphasis supplied) 14. The Division Bench held that production of the Crl.A No.2363 of 2006 7 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 property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 15. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: i) The detecting officer and other official witnesses have not given evidence as to the nature and description of the seal used by the detecting officer. ii) Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used. Crl.A No.2363 of 2006 8 iii) Ext.P7, copy of the forwarding note is silent regarding the specimen impression of the seal. iv) The detecting officer had not taken the sample at the scene of occurrence. - v) There is absolutely no evidence as to who had taken the sample which was forwarded to the Chemical Examiner's laboratory. - vi) The 2 litres of illicit arrack allegedly recovered from the scene of occurrence remained there even during the trial, which leads to the conclusion that there was no assurance that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory. 16. PW4, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the can containing the contraband substance. 17. Ext.P1, seizure mahazar, is also silent regarding the Crl.A No.2363 of 2006 9 seal stated to have been used by the detecting officer. 18. Ext.P7, the copy of the forwarding note, is silent regarding the specimen impression of the seal affixed on the bottle containing the sample sent to Chemical Examiner's laboratory. 19. Ext.P2, certificate of chemical analysis refers to a letter dated 16.10.1997 sent by the Judicial First Class Magistrate Court I, Nedumangad forwarding one sealed bottle containing 180 ml of a clear and colourless liquid alleged to be arrack in Crime No.175/1997 of Nedumangad Excise Range for chemical analysis. This Court is kept in the dark as to who took the sample and on which date and how much quantity and also whether it was despatched in a tamper proof condition. PW5 has given evidence that he had given requisition to the Magistrate's Court concerned to take sample from the contraband substance produced before the court. The prosecution failed to adduce any evidence regarding drawing of sample at any stage. 20. The learned Public Prosecutor submitted that the sample might have been drawn from the bulk quantity of the contraband substance produced before the court. It is Crl.A No.2363 of 2006 10 pertinent to note that there was no record before the court evidencing drawing of sample. It appears that on some day between 12.8.1997 and 16.10.1997 somebody might have taken the sample from the contraband substance produced before the court and despatched the same under the covering letter of the learned Magistrate to the Chemical Examiner's laboratory. The learned counsel for the appellant/ accused submitted that there is no assurance that the illicit arrack allegedly recovered from the possession of the accused finally reached the Chemical Examiner's laboratory in view of the fact that 2 litres of illicit arrack said to have been seized from the place of occurrence was before the court even during trial. I find force in the said submission of the learned counsel for the appellant. It is relevant to note that absolutely there is no evidence to show that the specimen impression of the seal used was forwarded to the Chemical Examiner's laboratory along with the sample. In Ext.P2, certificate of chemical analysis, there is mention by the examiner that the seal on the bottle was in tact and found tallied with the sample seal provided. In the absence of any evidence to show that the specimen impression of the seal was provided to the Chemical Examiner's laboratory no sanctity can Crl.A No.2363 of 2006 11 be attached to Ext.P2 Chemical analysis report. 21. Dealing with a similar factual situation, this Court in **Rajamma v. State of Kerala (2014(1) KLT 506)** 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”. 22. In the instant case, it was imperative on the part of the prosecution to examine the Thondi Section Clerk of the Court concerned or the excise official who had delivered the sample to the Chemical Examiner's laboratory to establish the tamper proof despatch of the sample. 23. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the Crl.A No.2363 of 2006 12 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. 24. 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 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. (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Valsala v. State of Kerala (1993 KHC 798), Sathi v. State of Kerala (2007(1) KHC 778))** 25. The upshot of the above discussion is that the prosecution failed to establish the charge against the accused. Crl.A No.2363 of 2006 13 The conviction entered and sentence passed by the trial court, ignoring these vital aspects, cannot be sustained. The appellant/accused is therefore not guilty of the offence punishable under Sections 55(a) of the Abkari Act. He is acquitted of the charge. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. **Sd/K. BABU JUDGE** ab