Kuttappan s/o Thankappan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF JULY 2021 / 1ST SRAVANA, 1943** **CRL.A NO. 2366 OF 2008** **AGAINST THE JUDGMENT IN SC.NO.689/2007 OF ADDITIONAL SESSIONS** **JUDGE (ADHOC), FAST TRACK COURT NO.1, THRISSUR** **APPELLANTS/ACCUSED:** **KUTTAPPAN S/O.THANKAPPAN, POZHANKANDATH HOUSE, TALAPPILLY TALUK, THRISSUR,** **BY ADV SRI.M.B.PRAJITH** **RESPONDENT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **23.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2366 of 2008 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.2366 of 2008** **------------------------------------** Dated this the 23[rd] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 24.09.2008, passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court No.I, Thrissur in SC.No.689/2007, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 58 of the Kerala Abkari Act. 3. The prosecution case is that on 20.02.2006 at about 05.30 p.m., the accused was found in possession of 1.250 liters of illicit arrack in front of the gate of Mali Goat Farm, Chittanda Village, Talappilly Taluk, Thrissur District. 4. The final report was submitted against the accused for the offence punishable under Section 58 of Crl.A.No.2366 of 2008 3 the Abkari Act before the Judicial First Class Magistrate Court, Wadakkanchery. 5. The case was committed to the Sessions Court, Thrissur, from where it was made over to the Trial Court. On 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 and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5 and Exts.P1 to P8 and Mos. 1 and 2. 7. 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 was 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. Crl.A.No.2366 of 2008 4 The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 58 of the Abkari Act. 8. Heard the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. 10. The learned Senior 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 Crl.A.No.2366 of 2008 5 whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 12. PW4, the Excise Inspector, Wadakkanchery Range, detected the offence. He has given evidence that on 20.02.2006 at about 05.30 p.m., the accused was found in possession of 1.250 liters of illicit arrack in a Jerrycan in front of the gate of Mali Goat Farm, Chittanda Village, Talappilly Taluk, Thrissur District. PW4 seized the contraband substance found in the possession of the accused. He had collected 375 ml of arrack from the contraband substance as sample in a bottle and sealed the same. The accused was arrested from the spot by PW4. PW4 prepared Ext.P1 seizure mahazar. PW5, an Assistant Excise Inspector, who had accompanied PW4, has given evidence in support of the version given by PW4. 13. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW4 conducted investigation Crl.A.No.2366 of 2008 6 and submitted final report before the Court against the accused. 14. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the sample stated to have been drawn from the contraband substance at the place of occurrence eventually was subjected to analysis at the Chemical Examiner's laboratory. 15. The learned counsel for the appellant/acccused relied on the following circumstances to substantiate his contentions: - (a) The official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P1, seizure mahazar, is silent regarding the nature and description of the seal said to have been used. - (c) The prosecution failed to establish that the specimen impression of the seal said to have been Crl.A.No.2366 of 2008 7 affixed on the bottle containing the sample was provided to the Chemical Examiner for verification so as to rule out the possibility of tampering with the sample. 15. PW4, the detecting officer and PW5, the Excise official, who had accompanied him in the search and seizure, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar being the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 16. The prosecution also failed to produce the specimen impression of the seal before the court. There is also no evidence to show that the specimen impression of the seal had been forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided was tallying with the seal affixed on the bottle containing the sample. Crl.A.No.2366 of 2008 8 17. 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 mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal affixed on the bottle containing the sample is required to be forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the bottle containing the sample. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191), **Majeedkutty v. Excise Inspector** [(2015) 1 KHC 424] and **Achuthan v. State of Kerala** [ILR 2016 (2) Ker. 145]]. 18. 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. The copy of the forwarding note, which contains the specimen impression of the seal Crl.A.No.2366 of 2008 9 and the name of the official with whom the sample is entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case. 19. 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 in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 20. 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 Crl.A.No.2366 of 2008 10 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”. 21. Ext.P8, the certificate of chemical analysis, would show that the bottle containing the sample was forwarded to the Chemical Examiner's laboratory by the Judicial First Class Magistrate Court, Wadakkanchery as per letter No.PI 59/2006 dated 23.02.2006. Ext.P8 would further show that sample was received by the laboratory on 06.05.2006 through an Excise Guard by name Manoj Kumar. 22. Prosecution has not adduced any evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory and also there is no material to see the name of the person with whom the sample was entrusted for delivering the same to the Chemical Examiner's laboratory, from the court. Ext.P8 would further show that one Manoj Kumar M.M., delivered Crl.A.No.2366 of 2008 11 the sample to the Chemical Examiner's laboratory on 06.05.2006. In the absence of any other material to show the date on which the sample was received by the Excise Official concerned from the court, this Court has to infer that the sample was handed over to the Official concerned on 23.02.2006. The sample reached the Chemical Examiner's laboratory on 06.05.2006, after a lapse of more than two months. 23. This Court is in the dark as to the name of the official who actually received the sample from the court. In such a situation, it was imperative for the prosecution to examine the official concerned of the court who handed over the sample to the Excise Official who received the same or the Excise Official, who delivered the sample to the Chemical Examiner's laboratory to establish tamper proof despatch of the sample from the court to the laboratory. (vide: **Viswanathan v. State of Kerala** [(2016) 3 KHC 38], **Kumaran v. State of Kerala** [2016 (4) KLT 718]). Crl.A.No.2366 of 2008 12 24. The non-examination of those officials is fatal to the prosecution. 25. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal had been provided to the Chemical Examiner the prosecution failed to satisfactorily establish that the sample was despatched to the laboratory in a tamper-proof condition. Resultantly no evidentiary value can be given to Ext.P8 chemical analysis report. 26. In the instant case, admittedly the sample remained in the custody of the officials concerned of the court, the Excise official who received the same from the court and the Excise official who delivered the sample 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 possibility of the sample being changed or tampered with during the period, Crl.A.No.2366 of 2008 13 a fact which had to be proved affirmatively by the prosecution. ((vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 27. 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. 28. 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. 29. In the instant case, the prosecution was unable to establish the link connecting the accused with the Crl.A.No.2366 of 2008 14 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. 30. The trial court passed the impugned judgment of conviction and sentence overlooking these vital aspects of the matter. The judgment of conviction and sentence is liable to be set aside. The appellant/accused is therefore not guilty of the offence punishable under Section 58 of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS