K.G.Vijayan Kuppakkattu Veedu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 9[TH] DAY OF AUGUST 2021 / 18TH SRAVANA, 1943** **CRL.A NO. 2424 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 159/2004 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC-I), KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED:** K.G.VIJAYAN KUPPAKKATTU VEEDU, KIDANGANADU, KIDANGANADU P.O., SULTHAN BATHERY,, WAYANAD DISTRICT. BY ADVS. SRI.S.M.PRASANTH DR.K.BALAKRISHNAN ## **RESPONDENT:** THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2424 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2424 of 2006** --------------------------------------- Dated this the 9[th] day of August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 15-11-2006, passed by the learned Additional Sessions Judge (Adhoc-I), Kalpetta in S.C No.159/2004. 2. The accused was convicted of the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 13-02-2003 at 3.00 p.m., the accused was found transiting 8 litres of illicit arrack in a 10 litre jar near the forest area on the side of Panayambalam-Manaladi Road in Kidanganadu Village. The offence was detected by the Excise Inspector, Excise Enforcement and Anti-Narcotic Special Squad, Wayanad. 4. 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 3 Crl.A No.2424 of 2006 Magistrate Court-I, Sulthanbathery. The case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc-I), 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 to the charge levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MO1. 6. 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 trial court, after hearing the 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. The accused was sentenced to Crl.A No.2424 of 2006 4 undergo rigorous imprisonment for a term of one year and to pay fine of Rs.1 Lakh. 7. Heard Sri.S.M.Prasanth, learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the possession of the accused was eventually subjected to analysis at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW3, the Excise Inspector attached to Excise Enforcement and Anti-Narcotic Special Squad, Wayanad, has given evidence that Crl.A No.2424 of 2006 5 on 13-02-2003 in the afternoon at about 2.40 p.m, on getting reliable information that the accused was engaged in selling arrack the Excise team led by him proceeded to the place of occurrence. The accused was found in possession of the contraband substance. PW3 seized the black jar in the possession of the accused as per Ext.P2 seizure mahazar. The accused was arrested from the spot. PW3 collected 200 ml of arrack from the jar in a 375 ml bottle and sealed the same. 12. PW4, the preventive officer attached to Excise Enforcement and Anti-Narcotic Special Squad, supported the version given by PW3. 13. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 14. PW5, the Assistant Excise Inspector attached to Excise Range Office, Sulthanbathery received the properties produced by PW3 and obtained the custody of the accused. PW5 produced the accused and articles recovered from the place of occurrence before the court. PW6 conducted investigation and submitted final report. 15. The learned counsel for the appellant/accused relied on the Crl.A No.2424 of 2006 6 following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the Analyst at the Chemical Examiner's laboratory: - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P2 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature of the seal used by the detecting officer. 16. The oral evidence of PWs 3 and 4 is silent regarding the nature of the seal affixed on the bottle containing the sample. Exhibit P2, seizure mahazar, also does not contain any narration as to the nature of the seal used by the detecting officer. No other official witnesses gave evidence regarding the nature of the seal affixed on the bottle containing the sample. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ [2019 KHC 191] this Court held that, the detecting officer, 7 Crl.A No.2424 of 2006 who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample and that the nature of the seal used shall be mentioned in the seizure mahazar. 17. The insistence on the evidence regarding the nature and description of the seal affixed on the bottle containing the sample is to enable the court to satisfy the genuineness of the sample produced before the court. 18. Exhibit P7, certificate of chemical analysis, would show that one sealed 375 ml bottle containing 200 ml of a colourless clear liquid alleged to be 'I.D arrack' was forwarded to the Chemical Examiner's laboratory by the Judicial First Class Magistrate-I, Sulthanbathery as per letter dated 14-02-2003. Exhibit P7 would further show that the sample was received in the laboratory on 03-03-2003. The prosecution has not given any evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. Exhibit P5, the copy of the forwarding note, does not contain any acknowledgement by the Excise official, who is stated to have received the sample from the court, indicating the date of 8 Crl.A No.2424 of 2006 receipt of the same. This Court can only come to an inference that the sample was forwarded to the Chemical Examiner's laboratory on 14-02-2003. If that be so, it was the bounden duty of the prosecution to satisfactorily explain the delay in the production of the sample in the laboratory and to establish that during the interregnum the seals on the sample remained intact. The prosecution ought to have examined the custodian of the sample in the court or the Excise official who received the sample from the court and delivered the same to the laboratory to establish the tamper-proof despatch of the sample from the court to the laboratory. 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 contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ The sample remained in the possession of the property clerk of the court and Sri.Ammed K.C, who delivered the sample to the 9 Crl.A No.2424 of 2006 laboratory. None of these witnesses were examined to establish that in their custody the seal was not tampered with. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 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 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. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. Crl.A No.2424 of 2006 10 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 55(a) 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