Kulathilveettil Vijayan Kalliad Amsom v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** ## **CRL.A NO. 614 OF 2008** **AS AGAINT THE JUDGMENT IN S.C.NO.1081/2005 ON THE FILES OF COURT OF SESSIONS,** ## **THALASSERY** ## **APPELLANT/ACCUSED:** **KULATHILVEETTIL VIJAYAN KALLIAD AMSOM, TALIPARAMBA TALUK, KANNUR DISTRICT.** **BY ADV SRI.C.K.SREEJITH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KEARLA,, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.614 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 30[th] day of May, 2022`** ``` Aggrieved by the judgment dated 04.02.2008 ``` ``` passed by the Additional Sessions Court (Adhoc-I), Thalassery in Sessions Case No.1081/2005, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a period of three months and pay a fine of Rs.1 Lakh. ``` ``` 2.The prosecution case is that on 13.03.2003 at 5.20 p.m., the accused was found transporting 3 litres of arrack at Neelikkulam of Kallyad Amsom. ``` ``` 3.After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 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 ``` **CRL.A.No.614 of 2008** **3** ``` Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 58 of the 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. ``` ``` 4.The prosecution examined PWs 1 to 4 and proved Exts. P1 to P7. ``` ``` 5.After the 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 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. On the side of the defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. ``` **CRL.A.No.614 of 2008** **4** ``` 6.Heard Sri.C.K.Sreejith, the learned counsel for the appellant and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. ``` ``` 7.The learned counsel challenged the judgment of conviction and sentence on the ground that the prosecution has not succeeded to establish that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory. ``` ``` 8.The learned counsel relied on the following circumstances to substantiate his contention: ``` - `(a) The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P3 seizure mahazar.` - `(b) No specimen impression of the seal was` ``` produced before the Court and forwarded to the Chemical Examiner's laboratory. ``` **CRL.A.No.614 of 2008** **5** - `(c) The prosecution has not given evidence as to the` ``` date on which the articles, including the sample, were produced before the Court. ``` - `(d) The property clerk of the Court and the Excise officials who delivered the sample in the Chemical Examiner's laboratory were not` - `examined to rule out the possibility of the sample being changed or tampered with.` ``` 9.The seizure was effected on 13.03.2003, by the Excise Range Inspector, Sreekandapuram (PW1). He effected the seizure as per Ext.P3, which does not contain the nature and description of the seal affixed on the bottle containing the sample. He has not given evidence as to the nature and description of the seal used. No specimen seal was produced before the Court to ensure the genuineness of the sample produced. ``` `10.` The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on **CRL.A.No.614 of 2008** **6** the bottle 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. 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 in the Court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Achuthan v. State of Kerala**_ [2016(1) KLD 391], _**Krishnadas v. State of Kerala**_ (2019 KHC 191)}. ``` 11. The prosecution has not adduced convincing evidence as to the date on which the sample was forwarded to the laboratory. Ext.P5, the copy of the forwarding note, does not contain the specimen impression of the seal stated to have been affixed on the bottle containing the sample. There is no evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner's laboratory to ascertain the ``` **CRL.A.No.614 of 2008** **7** ``` genuineness of the sample produced for analysis. ``` ``` 12. In Rajamma v. State of Kerala 2014 (1) KLT 506, this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. ``` ``` 13. The sample remained in the custody of the property clerk of the Court and the Excise official, who delivered the sample in the laboratory. These witnesses were not examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory from the Court. Non-examination of the officials who handled the sample during different stages is fatal to the prosecution. The prosecution ought to have examined these witnesses to rule out the possibility of the sample being changed or tampered with. This view is fortified by ``` **CRL.A.No.614 of 2008** **8** ``` the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. ``` ``` 14. The prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. ``` ``` 15. 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. ``` ``` 16. 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. Resultantly, the accused is entitled to the ``` **CRL.A.No.614 of 2008** **9** ``` and the other circumstances discussed. ``` ``` 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. The appellant/accused is therefore, not guilty of the offence punishable under Section 58 of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/30/05/2022 ``` **CRL.A.No.614 of 2008** **10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE 1** **THE TRUE COPY OF THE JUDGMENT IN SESSIONS CASE NO.1081/05 ON THE FILES OF THE COURT OF SESSIONS, THALASSERY**