Krishnankutty and Shaiju v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943 CRL.A NO. 1881 OF 2006** **AGAINST THE JUDGMENT DATED 16.09.2006 IN S.C.NO.17/2006 OF THE** **IIIRD ADDITIONAL SESSIONS JUDGE, (ADHOC), FAST TRACK COURT** **NO.1, THRISSUR.** ## **APPELLANTS/ACCUSED NOS.2 AND 4:** **1 KRISHNANKUTTY,S/O KUNJU, MADATHIPARAMBAN HOUSE, MATTATHUR VILLAGE,, KUNJALIPARA DESOM.** **2 SHAIJU, S/O.VIJAYAN KATTUNGAL HOUSE, MATTATHUR VILLAGE, KUNJALIPARA DESOM.** **BY ADVS. SRI.P. VIJAYA BHANU PRASUN.S,** ## **- RESPONDENT/COMPLAINANT STATE:** **STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1881 of 2006 2 ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.1881 of 2006** **------------------------------------** Dated this the 27[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 16.09.2006, passed by the learned III Additional Sessions Judge, (Adhoc), Fast Track Court No.1, Thrissur in SC.No.17/2006, the two accused (A2 & A4) have preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(b) of the Kerala Abkari Act. 3. The prosecution case is that the appellants/accused Nos.2 and 4 and the other accused in this case were found distilling arrack, using Wash and utensils, in the revenue puramboke land lying on the southern side of the rocky area, about 50 meters away from the house with door No.IV/189 of Mattathur Crl.A.No.1881 of 2006 3 Panchayat, at Kunhalippara desom in Mattathur Village at about 06.15 a.m., on 12.08.2000. The Circle Inspector of Excise attached to Excise Enforcement and Anti Narcotic Special Squad, Thrissur, detected the offence. 4. After completion of the investigation final report was submitted against the appellant/accused Nos.2 and 4 for the offences punishable under Sections 55(a), (b), (g) and 8(1) r/w Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Chalakudy. 5. The case was committed to the Sessions Court, Thrissur, from where it was made over to the Additional Sessions Judge, (Adhoc-III), Fast Track Court No.1, Thrissur. On appearance of the accused charge was framed against them for the offence punishable under Section 55(b) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the Crl.A.No.1881 of 2006 4 oral evidence of PWs 1 to 6 and Exts.P1 to P6 and MOs 1 to 12. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused are guilty of offence under Section 55(b) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo simple imprisonment for a term of three years each and to pay a fine of Rs.1,00,000/- each under Section 55(b) of the Abkari Act. 8. Heard Sri. P. Vijaya Bhanu, the learned Senior Counsel appearing for the appellants/accused Nos.2 & 4 and Sri. M.S. Breez, the learned Senior Public Prosecutor Crl.A.No.1881 of 2006 5 appearing for the respondent. 9. The learned Senior Counsel for the appellants/accused Nos.2 & 4 contended that the prosecution failed to establish that the contraband substance stated to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. 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** 12. CW1, the Circle Inspector of Excise attached to Excise Enforcement and Anti Narcotic Special Squad, Thrissur, on 12.08.2000, was leading an Excise party in Mattathur Village. At about 06.15 a.m., they reached Kunhalippara desom in Mattathur Village. The Excise team Crl.A.No.1881 of 2006 6 found the appellants/the other accused engaged in distilling arrack. 13. PW1, an Excise Guard, who had accompanied CW1 gave evidence that he was on patrol duty on the relevant day and when they reached near irrigation canal bund at Kunhalippara desom, they got reliable information that some persons were engaged in distilling of arrack in the place of occurrence. The Excise party proceeded to the place of occurrence. The accused Nos.1 to 4 were found manufacturing arrack behind a rock. PW1 deposed that the CI of Excise (CW1) seized MOs. 1 to 12 from the possession of the accused. The articles seized included 35 liters of Wash in Aluminium Vessels and 15 liters of arrack in a plastic Can. The Excise team also seized other utensils used for distilling arrack from the possession of the accused. PW1 has given evidence that CW1 collected 500 ml of arrack and 500 ml of Wash from the contraband substance in 2 bottles as sample and sealed the same. PW1 deposed that the residue of the Wash Crl.A.No.1881 of 2006 7 found at the place of the occurrence was destroyed and the rest of the articles were produced before the court. 14. PW6, the Excise Preventive Officer, who was a member of the Excise team led by CW1, supported the prosecution version. 15. PW2, an independent witness examined to prove the incident proper, did not support the prosecution case. 16. PW3, the Excise Preventive Officer attached to Excise Range Office, Irinjalakuda, received the articles produced before the Excise Office by CW1 and obtained the custody of the accused. The accused and the articles were produced before the court on 12.08.2000 itself. PW4 conducted initial investigation. PW5 continued the investigation and submitted final report before the Court. 17. The learned Senior Counsel for the appellants/accused relied on the following circumstances to substantiate his contentions: Crl.A.No.1881 of 2006 8 - (a) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was actually subjected to analysis in the Chemical Examiner's laboratory. - (b) The official witnesses have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. - (c) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottles containing the sample. - (d) The copy of the forwarding note, which contains the specimen impression of the seal, has not been produced before the court. - (e) There is no evidence to show that the properties, including the sample, allegedly recovered from the place of occurrence were produced before the Crl.A.No.1881 of 2006 9 court. 18. The oral evidence of the official witnesses is silent regarding the nature and description of seal affixed on the bottles containing the sample. Ext.P1, seizure mahazar, does not contain the nature of the seal stated to have been affixed on the bottles containing the sample. 19. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottles containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191)]. 20. The learned Senior Counsel for the appellants/accused submitted that there is no documents to show that the articles allegedly recovered from the place of occurrence were produced before the court without any delay. It is pertinent to note that no Crl.A.No.1881 of 2006 10 property list has been prepared and produced before the court. Ext.P2, the crime and occurrence report, prepared on 12.08.2000, contains the details of the articles seized from the place of occurrence. There is nothing to show the date on which Ext.P2 was produced before the court. PW3, the Excise Preventive Officer, gave evidence that the articles were produced before the court on 12.08.2000 itself. His oral evidence is not corroborated by any contemporaneous document. The specimen impression of the seal has not been produced before the court. The copy of the forwarding note, which contains the specimen impression, has also not been produced and marked in this case. 21. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands Crl.A.No.1881 of 2006 ## 11 in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 22. In **Rajamma v. State of Kerala** [2014 (1) KLT ## 506], this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. 23. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same had been provided to the Chemical Examiner. 24. Ext.P5, certificate of Chemical analysis, contains a certification that the seals on the bottles were intact and found tallied with the sample seal Crl.A.No.1881 of 2006 12 provided. Prosecution has not adduced any evidence to show that the specimen impression of the seal was produced before the court and the same was forwarded to the Chemical Examiner. In the absence of any evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner the certification contained in Ext.P5 cannot be accepted. 25. This Court is in the dark as to the date on which the bottles containing the samples were forwarded to the Chemical Examiner's laboratory. Ext.P5 would show that sealed bottles were forwarded to the Chemical Examiner's laboratory as per letter dated 26.09.2000 of the Judicial First Class Magistrate Court, Chalakkudy. It is pertinent to note that the Chemical Examiner analysised samples received on 20.09.2000. This is a serious infirmity which gives rise to a suspicion as to whether the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. Crl.A.No.1881 of 2006 13 26. There is also no convincing evidence to show as to through whom the articles including samples were produced before the court. There is lack of evidence as to with whom the samples were sent to the Chemical Examiner's laboratory. If the list of properties had been produced and marked before the court, it would have been possible to ascertain the name of the official who produced the properties before the court. 27. It is the admitted case of the prosecution that the samples changed several hands before it reached the Chemical Examiner's laboratory. In other words, the samples remained in the custody of the official of the court who received the same from the Excise official and the Excise official who received the samples from the court to be delivered to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the Crl.A.No.1881 of 2006 14 possibility of the samples being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]). 28. Ext.P5, certificate of Chemical analysis, shows that the sample reached the laboratory on 20.09.2000 and the same was analysised on 05.11.2001. The delay in the analysis of the sample has not been satisfactorily explained. 29. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State** ## **of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” Crl.A.No.1881 of 2006 15 30. In the instant case, the long delay in the analysis of the sample remains unexplained. 31. In view of the above discussed infirmities, no evidentiary value can be attached to Ext.P5, certificate of Chemical analysis. 32. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of the 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. 33. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. (vide: **Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 34. In the instant case, the prosecution was unable Crl.A.No.1881 of 2006 16 to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are entitled to benefit of doubt arising from the absence of link evidence as discussed above. 35. 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 appellants/accused are therefore not guilty of the offence punishable under Section 55(b) of the Abkari Act. They are acquitted of the charge levelled against them. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS