Kishore v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** ## **CRL.A NO. 2145 OF 2007** **AGAINST THE JUDGMENT IN SC 30/2006 OF ADDITIONAL SESSIONS COURT,** ## **FAST TRACK-II,ADHOC, THRISSUR** ## **APPELLANT/ACCUSED:** KISHORE, PANJAPPILLI, KUTTIPADAM DESOM, MURIYAD VILLAGE,, THRISSUR DISTRICT. BY ADV SRI.A.C.DEVY ## **RESPONDENT/STATE:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV. SMT. REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2145 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2145 of 2007 --------------------------------------Dated this the 10[th] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.10.2007, passed by the Additional Sessions Court, Fast Track No.II, Adhoc, Thrissur in S.C.No.30/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 10.06.2003 at about 10.45 a.m, the accused was found in possession of 2 ¼ litres of arrack at Kuttipadam desom in violation of the provisions of the Abkari Act. 3. 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 jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charges were framed against him for the offences punishable Crl.A No.2145 of 2007 3 under Sections 8(2) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P13 and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. A.C.Devy, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish the identity of Crl.A No.2145 of 2007 4 the person who was allegedly carrying the contraband substance. (ii) The prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 10.06.2003 by the Excise Inspector, Irinjalakuda Excise Range (PW1). According to PW1, on seeing the Excise party the accused ran away from the scene. He could not be apprehended. The prosecution has no case that the official witnesses including PW1 had any previous acquaintance with the accused. PW1 and the other official witnesses identified the accused on 06.09.2007, after a long lapse of four years. Going by the evidence of PW1 and the other official witnesses they had only a fleeting glimpse of the accused person. They failed to note any identification features of the person who ran away from the scene in Ext.P1 seizure mahazar. Therefore, identification of the accused by the official witnesses in the box is not acceptable. Crl.A No.2145 of 2007 5 9. 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 [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. 10. The learned counsel for the appellant relied on the following circumstances to contend that the prosecution failed to establish that the contraband allegedly seized from the scene eventually reached the hands of the Chemical Examiner. - (a) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated Crl.A No.2145 of 2007 6 to have been affixed on the bottle containing the sample. (b) Exhibit P4 requisition for sending sample/forwarding note does not contain the name of the official with whom the sample was forwarded and the date on which the learned Magistrate countersigned the same. 11. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. In Ext.P4 requisition for sending sample, the space meant for entering the name of the official with whom the sample was forwarded is left vacant. Though the learned Magistrate countersigned the same he has not mentioned the date on which he made his initial. While dealing with a similar fact situation, this Court in Kumaran v. State of Kerala [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the Crl.A No.2145 of 2007 7 space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 12. In the present case, the property clerk of the Court and Sri.P.G.Dileepkumar, the Excise guard who delivered the sample to the laboratory after obtaining the same from the Court were not examined as witnesses. Non-examination of those witnesses is Crl.A No.2145 of 2007 8 fatal to the prosecution case as it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. As the prosecution failed to show that the contraband seized at the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P13 Certificate of Chemical Analysis has no evidentiary value. 14. 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. 15. 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 Crl.A No.2145 of 2007 9 [2007 (1) KHC 275]}. 16. In the instant case, the prosecution has miserably failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. 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. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS