Kannan @ Haridas v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 CRL.A NO. 1997 OF 2008** **AGAINST THE JUDGMENT IN SC 598/2007 OF ADDITIONAL SESSIONS** **COURT(ADHOC II), THRISSUR** ## **APPELLANT/ACCUSED:** KANNAN @ HARIDAS, S/O.CHAMI, THOPPILTHODI HOUSE, NEDUMPURA VILLAGE, PANNIYADI DESOM, TALAPPILY TALUK, THRISSUR. BY ADV SRI.M.B.PRAJITH ## **RESPONDENT:** STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1997 of 2008 2 K.BABU, J. -------------------------------------Criminal Appeal No.1997 of 2008 --------------------------------------Dated this the 19[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 20.08.2008, passed by the Additional Sessions Judge, Fast Track Court No.II (Adhoc), Thrissur in S.C.No.598/2007, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 08.03.2006 at about 5.30 p.m., the accused was found in possession of 5 litres of arrack at Panniyadi desom in Nedumpura Village, Talappilly Taluk. 4. 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 Judicial First Class Magistrate Court-II, Wadakkanchery. The case was committed to the Sessions Court, Thrissur 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 3 Crl.A No.1997 of 2008 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. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P10 and MO1. 6. After the closure of the prosecution evidence, 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 adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 7. Heard Sri.M.B.Prajith, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.1997 of 2008 4 8. The learned counsel for the appellant/accused made the following submissions: - (a) The prosecution failed to establish the identity of the person who was found to be in possession of the contraband substance at the place of occurrence. - (b) The prosecution failed to establish that the very same contraband substance collected from the bulk quantity of the articles seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. PW2, the Excise preventive officer, Excise range office, Wadakkanchery is the detecting Officer. He was on patrol duty on 08.03.2006. When the Excise team led by PW2 reached Panniyadi desom in Nedumpura Village they found the accused by the side of the road in front of the house of one Sankaran. On seeing the Excise team, the accused abandoned the can in his possession and ran Crl.A No.1997 of 2008 5 away. The Excise team could not apprehend the accused from the place of occurrence. PW2 seized the can containing 5 litres of arrack as per Ext.P2 seizure mahazar. 11. PW3, the Excise official who had accompanied PW2 supported the version of PW2. PWs 4 and 5, the independent witnesses, examined to prove the incident proper, did not support the prosecution version. PW6 conducted the investigation and submitted final report against the accused. 12. The learned counsel for the appellant submitted that the identification of the accused in the box by the official witnesses, who had no previous acquaintance with the accused, is not admissible in evidence. The incident happened on 08.03.2006. PW2 and PW3 gave evidence in the Court on 17.07.2008, after a lapse of more than two years. They gave evidence that they had seen the accused from a distance of 30 metres. PWs 2 and 3 had no opportunity to identify the accused after the incident. 13. Going by their evidence, PWs 2 and 3 had only a fleeting glimpse of the person who ran away from the scene of occurrence. 14. It is well settled that where a witness identifies an Crl.A No.1997 of 2008 6 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 powers of observation. If the witness is not provided with an opportunity to test his power of observation, it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by the Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]. So on this ground alone, the prosecution must fail. 15. The learned counsel for the appellant further contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: (a) The detecting officer has not narrated the nature and Crl.A No.1997 of 2008 7 description of the seal stated to have been affixed on the sample in Ext.P2 seizure mahazar. - (b) He has not given evidence as to the nature and description of the seal used. - (c) The officials, who handled the sample during different stages, were not examined to establish the tamper-proof despatch of the sample to the laboratory. - (d) Though the sample was forwarded as per letter dated 16.03.2006, the same reached the laboratory only on 06.05.2006. 16. Exhibit P2 seizure mahazar does not contain the nature and description of the seal used by the detecting officer when the sample was drawn. He has not given evidence as to the nature of the seal used. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced in the Court. 17. Exhibit P9, the certificate of chemical analysis, would show Crl.A No.1997 of 2008 8 that one sealed bottle was forwarded to the laboratory as per letter dated 16.03.2006 of the Judicial First Class Magistrate, Wadakkanchery. As per Ext.P9, the sample reached the laboratory only on 06.05.2006. Exhibit P9 would further show that the sample was delivered to the laboratory through an Excise guard by name Manojkumar. Neither the property clerk, the custodian of the properties including the sample, nor Sri.Manojkumar, was examined as a witness. In the absence of any evidence regarding the date on which the bottle containing the sample was handed over to Manojkumar, this Court has to infer that the bottle containing the sample was forwarded to the laboratory on 16.03.2006. The delay occurred in bringing the sample to the laboratory has not been explained by the prosecution. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the Crl.A No.1997 of 2008 9 contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 18. The sample remained in possession of the property clerk of the Court and the Excise guard who received the bottle from the Court. The prosecution failed to prove that the seals on the sample were not tampered with while they were in their custody. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the transit to the laboratory. In the absence of any convincing evidence to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory, Ext.P9 certificate of chemical analysis cannot be given any evidentiary value. 19. 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. 20. It is settled that the prosecution, in a case of this nature, Crl.A No.1997 of 2008 10 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]}. 21. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 22. 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, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS