KUMARAN NAMBIAR @ C.P.KUMARAN S/O KUNJAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943** **CRL.A NO. 2274 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 221/2004 OF ADDITIONAL DISTRICT** **COURT (ADHOC), KALPETTA, WAYANAD** ## **APPELLANT/ACCUSED:** KUMARAN NAMBIAR @ C.P.KUMARAN S/O.KUNJAN, AGED 52, CHEMATTPADI HOUSE, APPAPARA P.O., THIRUNELLI, WAYANAD DISTRICT. BY ADVS. SRI.V.RAJENDRAN SRI.P.SAMSUDIN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY THE EXCISE INSPECTOR OF MANANTHAVADY RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR BY ADVS. SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2274 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2274 of 2006** --------------------------------------Dated this the 9[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 25-10-2006, passed by the learned Additional Sessions Judge (Adhoc-I), Kalpetta in S.C No.221/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 27-11-2002 at 4.00 p.m., the accused was found in possession of 2 litres of illicit arrack in a jar having a capacity of 5 litres at Chekadi bhagom, Appappara in Thirunelly village. 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 Magistrate Court, Mananthavady. The case was committed to the Sessions Court, Kalpetta from where it was made over to the 3 Crl.A No.2274 of 2006 Additional Sessions Court, 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 4 and proved Exts.P1 to P6 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 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 undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1 Lakh under Section 55(a) of the Abkari Act. Crl.A No.2274 of 2006 4 7. Heard Sri.P.Samsudin, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended as follows: - (i) The prosecution failed to establish the identity of the person who was in possession of the contraband substance at the place of occurrence. - (ii) The delay in the production of the properties before the court has not been satisfactorily explained. - (iii) The prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor 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 Crl.A No.2274 of 2006 5 accused/appellant are sustainable or not. ## **The Point** 11. PW1, the Excise Inspector, Mananthavady detected the offence. He has given evidence that on 27-11-2002 while he was on patrol duty at Appappara in Thirunelly village, the accused was found in possession of 2 litres of illicit arrack in a plastic jar having a capacity of 5 litres. According to PW1, on seeing the Excise team, the accused abandoned the plastic can in his possession and ran away from the scene of occurrence. PW1 has given evidence that he collected 200 ml of arrack as sample in a bottle having a capacity of 375 ml and the same was sealed and labelled. PW1 has given evidence that the contraband substance was seized at the scene of occurrence as per Ext.P1 seizure mahazar. PW2, the preventive officer, Excise Range Office, Mananthavady who had accompanied PW1, supported the prosecution case. 12. PW3, an independent witness, has given evidence that he had not seen the accused abandoning the plastic jar containing arrack. He stated that he had seen the accused running through the Crl.A No.2274 of 2006 6 backside of his house. PW3 could not give evidence as to the date on which the accused had run through the backside of his house. PW3 admitted his signature in Ext.P1 seizure mahazar. 13. PW4, the Excise Inspector, Manathavady, conducted investigation in the matter and submitted final report before the court on 19-03-2004. 14. The learned counsel for the appellant/accused submitted that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband liquor at the place of occurrence. The case of the prosecution is that on seeing the Excise team, the accused ran away from the place of occurrence after abandoning the MO1 can. 15. PW1, the detecting officer and PW2, the preventive officer who had accompanied him, identified the accused as the person who ran away from the scene of occurrence on the date of occurrence. PWs 1 and 2 claimed to have seen the said person from a distance of about 25 feet. Going by the evidence they had only a fleeting glimpse of the said person. PWs 1 and 2 admitted that they had no Crl.A No.2274 of 2006 7 previous acquaintance with the accused. Both of them identified the accused in the court after a long lapse of 4 years. They never had an opportunity to see the accused after the incident. 16. 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 previous T.I parade to test his power of observation {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 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), _**Mohanlal Gangaram Gehani vs State Of Maharastra**_ (AIR 1982 SC 839). Hence the identification of the accused in the court by PWs 1 and 2 is valueless and could not be relied upon. Now what remains is the oral evidence of PW3, the independent witness. PW3 stated that he had seen the accused running through the backside of his house. He has not given any evidence as to the date on which he found the accused running as stated above. He further specifically stated that he Crl.A No.2274 of 2006 8 had not seen the accused carrying the contraband substance as pleaded by the prosecution. Hence the oral evidence of PW3 regarding the identity of the person who ran away from the scene of occurrence cannot be used against the accused. 17. The resultant conclusion is that the prosecution failed to establish the identity of the person who was found in possession of the contraband substance on the date of occurrence. 18. The learned counsel for the appellant/accused further submitted that there is no satisfactory explanation for the delay in production of the properties before the court by Excise officials. The alleged seizure was on 27-11-2002. Exhibit P3 shows that the properties were produced before the court on 05-12-2002. PW1, the detecting officer has given evidence that due to pressure of official work he could not produce the properties before the court in time. The explanation of PW1 is not satisfactory. 19. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of this Court held as follows: _“8. We, therefore, answer the reference as follows:_ Crl.A No.2274 of 2006 9 _1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ The Division Bench held that the production of the properties should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the property. Unexplained delay in the production of the properties including the bottles containing the sample would lead to the conclusion that tampering with the samples could not be ruled out. 20. The learned counsel for the appellant/accused further contended the prosecution failed to establish that the contraband substance, allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s laboratory. 21. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: (i) PW1, the detecting officer and the other official witness (PW2) who had accompanied him have not given evidence Crl.A No.2274 of 2006 10 as to the nature and description of the seal affixed on the sample. - (ii) Exhibit P1 seizure mahazar, a contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (iii) Exhibit P4, the copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. 22. I have gone through the depositions of the official witnesses and Ext.P1 seizure mahazar. PW1, the detecting officer and PW2 the Excise official who had accompanied him, had not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar is silent regarding the specimen impression of the seal stated to have been affixed on the bottle containing the sample. 23. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure Crl.A No.2274 of 2006 11 mahazar. {Vide _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Krishnadas v. State of Kerala**_ [2019 KHC 191]}. 24. Exhibit P4, copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Exhibit P6, certificate of chemical analysis would show that the sample was received in the laboratory through the Excise guard by name Sunil on 01-01-2003. There was no explanation as to why the space meant for writing the name of the Excise guard with whom the sample was sent, left unfilled in Ext.P4, copy of the forwarding note. The learned Magistrate, who put his initial on Ext.P4, failed to mention the date on which he put his initial. This Court is in the dark as to who received the sample bottle from the court to be forwarded to Chemical Examiner’s laboratory. In such a situation the prosecution ought to have examined the thondi clerk of the court or the Excise official concerned to prove the tamper proof despatch of the sample to the laboratory. 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_ Crl.A No.2274 of 2006 12 _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 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 tamperproof 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.”_ 25. The specimen seal provided in Ext.P4 copy of the forwarding note is not legible. 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 corelated. 26. It is settled that the prosecution in a case of this nature can Crl.A No.2274 of 2006 13 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 contraband substance allegedly recovered from the place of occurrence. {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 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 and other circumstances discussed above. 27. 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) and of the Abkari Act. He is acquitted of the charge under section 55(a) of the Abkari Act. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS