K. Vijayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 22[ND] DAY OF JULY 2021 / 31ST ASHADHA, 1943** ## **CRL.A.NO.1330 OF 2007** **AGAINST THE JUDGMENT IN S.C.NO.20/2001 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA** **APPELLANT/ACCUSED:** **K.VIJAYAN, S/O.KESAVAN, THAVINHAL MANANTHAVADY, WYNAD DISTRICT.** **BY ADVS. SRI.T.G.RAJENDRAN SRI.T.R.TARIN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 EXCISE INSPECTOR MANANTHAVADY EXCISE RANGE.** - **2 STATE OF KERALA REPRESENTED BY** - **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 22.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1330/2007 ## _**JUDGMENT**_ _Dated this the 22[nd] day of July, 2021_ Aggrieved by the judgment dated 25.6.2007, passed by the learned Additional Sessions Judge (Adhoc) II, Kalpetta, in Sessions Case No.20 of 2001, 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 26.11.1997, the accused was found in possession of 50 packets of Karnataka made arrack at Chettappalam, Mananthavady. The offence was detected by the Excise Inspector of Mananthavady Excise Range. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Mananthavady. The case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc) II, Kalpetta. On appearance of the accused, charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the 3 Crl.A.No.1330/2007 ## learned Additional Sessions Judge for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PW1 to PW7, Exhibits P1 to P7 and MO1 series. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. 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 trial court, after hearing the arguments addressed from both sides, convicted the accused and sentenced him to undergo rigorous imprisonment for a term of two years and to pay fine of Rupees One Lakh under Section 55(a) of the Abkari Act. 6. Heard Sri.T.G.Rajendran, learned counsel for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent/State. 7. The learned counsel for the appellant contended as follows : (a) There is no satisfactory explanation for the delay in the production of the properties allegedly seized before the court. (b) The prosecution failed to establish that the contraband 4 Crl.A.No.1330/2007 articles said to have been seized from the possession of the accused 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. PW1, the Excise Inspector, Mananthavady, detected the offence. PW1 has given evidence that on 26.11.1997, at 1.30 P.M., while the Excise team led by him was on patrol duty at Chettappalam, Mananthavadi, the accused was found in possession of 50 packets of arrack, each containing 100 ml., made in the State of Karnataka. PW1 seized the contraband substance from the possession of the accused and collected 375 ml. of arrack in a bottle as sample and sealed the same. PW1 prepared Exhibit P2 seizure mahazar. PW4, the Excise Preventive Officer, who had accompanied PW1 in the patrol duty, has supported the version of PW1. PWs 2 and 5, the independent witnesses, did not support the prosecution case. PW3, another independent witness, was 5 Crl.A.No.1330/2007 examined to prove Exhibit P6 scene mahazar. PW6, the Excise Inspector, Excise Range, Mananthavady conducted major part of the investigation. PW7 completed the investigation and submitted final report. 11. The learned counsel for the appellant submitted that the prosecution has not given any satisfactorily explanation for the delay in the production of the properties including the bottle containing the sample before the court. Exhibit P4, the list of properties, sent to the Magistrate shows that the properties including the bottle containing the sample allegedly seized on 26.11.1997 were produced before the court only on 2.12.1997. PW1, the detecting officer, has not offered any satisfactory explanation for the delayed production of the properties before the court. 12. On the question of delay in production of the properties, a 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._ 6 Crl.A.No.1330/2007 _There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ 13. 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 property. The unexplained delay in the production of the properties would lead to the conclusion that tampering with the samples could not be ruled out. 14. The learned counsel for the appellant 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 establish his contentions : (i) PW1, the detecting officer, and the official witness, who had accompanied him (PW4) have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. (ii) Exhibit P2 seizure mahazar, the contemporaneous 7 Crl.A.No.1330/2007 document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. There is no evidence to ascertain the name of the person with whom the bottle containing the sample was sent to the Chemical Examiner's laboratory. (iii) The date on which the bottle containing the sample was forwarded to the Chemical Examiner's laboratory is not evident from any of the contemporaneous documents and no official witnesses have given evidence on this aspect. 15. I have gone through the evidence of PWs 1 and 4, the detecting officer and the Excise Preventive Officer who had accompanied him. They have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Exhibit P2 seizure mahazar is silent about the specimen impression of the seal stated to have been affixed on the bottle containing the sample. 16. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar [vide : _Bhaskaran v. State of Kerala and another (2020 KHC 5296)_ and _Krishnadas v. State of_ 8 Crl.A.No.1330/2007 ## _Kerala (2019 KHC 191)]._ 17. Exhibit P5 copy of the forwarding note is silent regarding the name of the person with whom the sample was sent for analysis. Exhibit P7 Certificate of Chemical Analysis would show that the sample was received in the laboratory through the Excise Guard C.Venu. It is not discernible as to why the space meant for writing the name of the Excise Guard with whom the sample was sent remained vacant in Exhibit P5, the copy of the forwarding note. The learned Magistrate who put his initials in the copy of the forwarding note has not written the date on which the initial was made. Exhibit P7 the Certificate of Chemical Analysis would further show that the bottle containing the sample was forwarded to the laboratory by the Judicial First Class Magistrate Court, Mananthavady as per a letter dated 'nil'. This Court is in the dark as to the person who received the bottle containing the sample from the court and the date on which the same was sent to the Chemical Examiner's laboratory. Exhibit P7 only shows that the sample was received in the laboratory on 9.1.1998. It has come out in evidence that the sample was handled by the thondi clerk of the court or the official concerned in the court, the Excise Guard, who received the sample from the court 9 Crl.A.No.1330/2007 and the Excise Official who delivered the same to the Chemical Examiner's laboratory. It is pertinent to note that there is no evidence to ascertain the date on which the sample was sent to the chemical examiner's laboratory. In such a situation, it was imperative for the prosecution to examine the thondi clerk of the court or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. [See : _State of Rajasthan v. Daulat Ram_ , _Kumaran v. State of Kerala (2016 (4) KLT 718)_ etc.]. 18. It is settled that the prosecution in a case of this nature, where the sample might have changed several hands before it reached the hands of the Chemical Examiner, 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 (AIR 1980 SC 1314), Valsala v. State of Kerala (1993 KHC 798), Sathi v. State of Kerala (2007 (1) KHC 778)]._ For the purpose of establishing the link connecting the accused with the contraband substance, the prosecution ought to have examined the official witnesses who 10 Crl.A.No.1330/2007 handled the bottle containing the sample at different stages before it reached the Chemical Examiner's laboratory. 19. In _**Vijay Pandey v. The State of Uttar Pradesh** (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. 20. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband substance 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. 21. 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 is therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- ## **K.BABU, JUDGE** csl