Karunan s/o Kadungon v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943 CRL.A NO. 2965 OF 2008** **AGAINST THE JUDGMENT DATED 25.11.2008 IN S.C.NO.120/2007 OF ADDITIONAL SESSIONS COURT, VADAKARA** ## **APPELLANT/ACCUSED:** **KARUNAN S/O.KADUNGON, AGED 39 YEARS, NELLIYULLAKUNIYIL HOUSE, EDACHERY AMSOM, DESOM, VATAKARA TALUK.** **BY ADV SRI.P.V.ANOOP** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.2965/2008 ## _**JUDGMENT**_ _Dated this the 30[th] day of June, 2021_ Aggrieved by the judgment dated 25.11.2008, passed by the Additional Sessions Judge, Vadakara, in Sessions Case No.120 of 2007, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 12.8.2005, the accused was found in possession of 10 litres of illicit arrack behind Thuruthippalli, on the side of the river. The offence was detected by a Preventive Officer of Nadapuram Excise Range. After completion of investigation, final report was submitted against the accused by PW5, Excise Inspector, for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nadapuram. The case was committed to the Sessions Court, Kozhikode, from where it was made over to the Additional Sessions Court, Vadakara. On appearance of the accused, charge was framed against the 3 Crl.A.No.2965/2008 accused 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. 3. The prosecution examined PW1 to PW6 and proved Exhibits P1 to P8. 4. 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, that 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 one year and to pay fine of Rupees One lakh. 5. Heard the learned counsel for the appellant and the learned Senior PublicProsecutor. 6. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds : 4 Crl.A.No.2965/2008 - (a) The prosecution failed to establish the identity of the person who was carrying the contraband substance at the scene of occurrence. - (b) There is no satisfactory evidence to show that the sample allegedly recovered from the scene of occurrence eventually reached the Chemical Examiner's laboratory. 7. The learned Senior Public Prosecutor, per contra, contended that there are sufficient materials to establish the charge against the accused. 8. PW1, the Preventive Officer, Excise Range Office, Nadapuram, on 12.8.2005, at 6.30 A.M., detected the offence. PW2 was the Excise Guard who had accompanied PW1 in the patrol duty. PW4 is an independent witness. PW5, Excise Inspector, Nadapuram conducted investigation and submitted final report. 9. The learned counsel for the appellant submitted that the prosecution failed to establish the identity of the person who was found carrying the contraband substance at the scene of 5 Crl.A.No.2965/2008 occurrence. PWs 1 and 2 would submit that on 12.8.2005, when they reached on the bank of Thuruthi river, near Thuruthippally, they found the accused in possession of a can containing 10 litres of illicit arrack. Both of them would submit that on seeing the Excise team, the accused jumped into the river and swam to the opposite bank. He was not arrested from the spot. PWs1 and 2 claimed that they had seen the accused from a distance of about 50 feet. 10. Both PWs 1 and 2 have given evidence that they had no previous acquaintance with the person who jumped into the river. On a careful scanning of the oral evidence of PWs 1 and 2, it can be seen that they had only a fleeting glimpse of the man who jumped into the river after leaving the can containing the illicit arrack. PW1 has stated that he had not arrested the accused on the date of occurrence or any date after that. The evidence of PWs 1 and 2 would show that they never had an opportunity to see the accused before he was identified in the court on 13.10.2008, after a lapse of three years. PW1 had not narrated any of the identifying features of the accused in Exhibit 6 Crl.A.No.2965/2008 P1 mahazar. It is well settled that 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 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 **[** V _ide Jameel v. State of Maharashtra [AIR 2007 (SC) 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], Kanan 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] and Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]_ _**]**_ . 11. The independent witness did not support the prosecution case. So the evidence of PWs 1 and 2 on the identification of the accused cannot be accepted as the identification in court by them for the first time, after a lapse of three years of the detection, is absolutely valueless. 7 Crl.A.No.2965/2008 12. The learned counsel for the appellant further submitted that the genuineness of the sample is in doubt as the nature and description of the seal affixed on the bottle containing the sample was not mentioned in Exhibit P1 mahazar. Exhibit P1 mahazar does not contain anything as to the nature and description of the seal that PW1 had affixed on the bottle containing the sample. PW1 has not given evidence as to the nature and description of the seal which he had affixed on the bottle containing the sample. PW2 also has not given evidence for the same. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced before the court [Vide : _**Achuthan v. State of Kerala** [ILR 2016 (2) KER 145]_ , _**Bhaskaran v. State of Kerala and another** (2020 KHC 5296)]_ . The requirement of mentioning of the nature and description of the seal in the seizure mahazar is a safeguard for the tamper proof production of the sample before the court. 13. Exhibit P4, copy of the forwarding note, does not 8 Crl.A.No.2965/2008 contain the date on which the sample was sent from the court to the laboratory. Exhibit P4, forwarding note, prepared by PW1 contains the counter signature of the learned Magistrate concerned. But, the learned Magistrate has not written the date on which he affixed his signature. Exhibit P8, report of chemical analysis, would show that examination of the sample was done on the basis of reference letter No.PR 233/2005. But, the date of the letter is not mentioned. Exhibit P8, of course, would show that the sample was delivered to the Chemical Examiner's laboratory on 24.8.2005 through an Excise Guard by name Sundaran. There is no evidence to ascertain the date on which the Excise Guard received the sample from the court. The Excise Guard Sundaram was not examined as a witness. If the learned Magistrate had written the date along with his initials, it could have been presumed that the sample was sent on that day. Though the thondi clerk was examined as a witness, he has not given evidence as to the date on which the sample was handed over to the Excise Guard for delivering the same to the Chemical Examiner's laboratory. In the absence of any date 9 Crl.A.No.2965/2008 written by the Magistrate in the forwarding note, this Court is in dark as to the date on which the sample was handed over to the Excise Guard. The lack of evidence as to the date on which the sample was handed over to the Excise Guard from the court is a missing link. At this juncture, I must say that the prosecution failed to rule out the possibility of tampering of the sample. The resultant conclusion is that in view of the fact that the nature and description of the seal affixed on the sample is absent in the seizure mahazar and the further fact that there is no evidence as to the date on which the sample was handed over to the Excise Guard from the court, it cannot be said that the prosecution succeeded in establishing that the sample which was allegedly seized from the place of occurrence ultimately reached the hands of the Chemical Examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. 14. The upshot of the above discussion is that the conviction and sentence imposed on the appellant as per the 10 Crl.A.No.2965/2008 judgment dated 25.11.2008 by the Additional Sessions Judge, Vadakara, are not sustainable. The accused is acquitted. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl