Madhu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943** **CRL.A NO. 1765 OF 2006** **AGAINST THE JUDGMENT IN SC.NO.292/2005 OF ADDITIONAL DISTRICT AND SESSIONS JUDGE (ADHOC), FAST TRACK COURT-I,** ## **PATHANAMTHITTA,** **APPELLANT/ACCUSED:** **MADHU, AGED 35 YEARS, S/O. RAMACHANDRAN, THULASI BHAVANAM, VALUPARA, KUMARAMPEROOR, VADAKKEKKARA,, CHITTAR SEETHATHODU.** **BY ADV SHRI.M.V.S.NAMPOOTHIRY** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1765 of 2006 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.1765 of 2006** **------------------------------------** Dated this the 16[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 22.08.2006, passed by the learned Additional Sessions Judge, Fast Track Court No.I (Adhoc), Pathanamthitta in SC.No.292/2005, the accused No.1 has preferred this appeal. 2. The trial court convicted the accused/appellant for the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 29.04.2003 at 16.30 hours, the present accused and accused No.2 were found in possession of 3,250 liters of Wash in 130 tin barrels in the forest land at Valupara Junction, Kumaramperror, Vadakkekara Muri, Seethathodu Village by the Sub Inspector of Police, Moozhiyar Police Station. 4. After completion of investigation, final report was submitted against the appellant and the other accused Crl.A.No.1765 of 2006 3 (accused No.2), who is the father of the accused No.1, for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ranni. 5. The case was committed to the Sessions Court, Pathanamthitta, from where it was made over to the Additional Sessions Court, Fast Track Court No.I (Adhoc), Pathanamthitta. On appearance of the accused charge was framed against them for the offence punishable under Section 8(2) 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 oral evidence of Pws.1 to 5 and Exts.P1 to P6 and MO. 1. 7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was 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 Crl.A.No.1765 of 2006 4 to adduce evidence, if any, they may have in support thereof. 8. The learned trial court, after hearing arguments addressed from both sides, found that the appellant/ accused No.1 was guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused No.2 was acquitted. The appellant/accused No.1 was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.2,00,000/- under Section 8(2) of the Abkari Act. 9. Heard Sri. M.V.S.Nampoothiry, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 10. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction: (a) The prosecution failed to establish the identity of the persons, who were allegedly possessing the contraband substance at the Crl.A.No.1765 of 2006 5 scene of occurrence. - (b) The inordinate delay in the production of properties before the court has not been satisfactorily explained. - (c) The prosecution failed to establish that the articles said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. - (d) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 11. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 12. The only point that arises for consideration is whether the conviction entered and the sentence passed against the appellant/accused are sustainable or not. ## **THE POINT** 13. PW4, the Sub Inspector of Police, Moozhiyar, detected the offence. He has given evidence that on Crl.A.No.1765 of 2006 6 29.04.2003 at about 16.30 hours, on getting reliable information that the appellant and other accused were engaged in manufacturing illicit arrack, the Police team led by him proceeded to the place of occurrence at Valupara. 14. PW4 has given evidence that on seeing the Police party the appellant and other accused ran away from the scene of occurrence, leaving the contraband articles. PW4 collected 900 ml of Wash in 3 bottles (300 ml each) as sample and sealed the same. PW1, the Police Official who had accompanied PW4 supported the prosecution case. 15. PW2, an independent witness, who was examined to prove the incident proper, did not support the prosecution case. PW3, the Deputy Ranger, Forest Range Office, Kozhikkal has given evidence that the place of occurrence is forest land. PW5 conducted investigation and submitted final report before the Court. 16. Learned counsel for the appellant further submitted that prosecution failed to establish the identity of the persons who were in possession of the Crl.A.No.1765 of 2006 7 contraband substance at the place of occurrence. The case of the prosecution is that on seeing the Police team the appellant and the other accused ran away from the scene of occurrence. PW4 and other official witnesses have claimed that they had seen the appellant and the other accused from a distance of 50 meters. The official witnesses have no case that they had any previous acquaintance with the appellant and the other accused. The detecting officer and the other official witness, who had accompanied him identified the appellant/accused in the court in July 2006 after a lapse of three years. The independent witness who was examined to prove the seizure and identity of the accused did not support the prosecution case. 17. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during the trial. 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 Crl.A.No.1765 of 2006 8 identification parade to test his power of observation (vide: **Jameel v. State of Maharashtra** [AIR (2007) SC 971], **Raja v. State by Inspector of Police** [AIR (2020) SC 254], **Kanan and Others v. State of Kerala** [AIR (1979) SC 1127], **State (Delhi Administration) v. V.C.Shukla and Another** [AIR (1980) SC 1382], **Mohanlal Gangaram Gehani v. State of Maharashtra** [AIR (1982) SC 839], **Mohd. Abdul Hafeez v. State of AP** [AIR (1983) SC 367]. 18. In the instant case, the prosecution has no case that the witnesses who identified the appellant had any opportunity to see him after the incident and they identified him in the court after a long lapse of three years. This Court, hence, comes to the conclusion that prosecution failed to establish the identity of the persons who were allegedly possessing the contraband substance at the place of occurrence. 19. The learned counsel for the appellant/accused further contended that the inordinate delay in the production of the properties before the court has not been explained by the prosecution. PW4, the detecting Crl.A.No.1765 of 2006 9 Officer, admitted that properties allegedly seized from the place of occurrence were produced before the Court only on 27.10.2003. Ext.P4, list of properties, sent to the Magistrate also shows that the properties reached the court only on 27.10.2003. No satisfactory explanation has been placed before the court for the delay in the production of the properties. 20. On the question of delay in production of the properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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) 21. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. Crl.A.No.1765 of 2006 10 In the instant case there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 22. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the sample allegedly drawn at the place of occurrence, eventually reached the Chemical Examiner's laboratory. 23. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions: - (a) The detecting officer and the official witness, who had accompanied him, have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. - (b) Ext.P1, seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used by Crl.A.No.1765 of 2006 11 the detecting officer. (c) The prosecution failed to establish that the specimen impression of the seal was provided to the Chemical Examiner to ensure that the seal affixed on the bottles containing the sample was tallying with the specimen provided. 24. PW4, the detecting officer and PW1, the Police 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 bottles containing the sample. Ext.P1, seizure mahazar, is also silent regarding the specimen of the seal stated to have been affixed on the bottles containing the sample. 25. 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 shall be provided in the seizure mahazar and also in the forwarding note so as to enable Crl.A.No.1765 of 2006 12 the Court to satisfy the genuineness of the sample produced in the court. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191)]. 26. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottles containing the sample. Ext.P5, copy of the forwarding note, is also silent regarding the the specimen impression of the seal stated to have been used by the detecting officer. 27. While considering a fact situation in which the prosecution failed to establish that the specimen impression of the seal was not produced before the court and forwarded to the Chemical Examiner, this Court in ## **Rajamma v. State of Kerala** [2014 (1) KLT 506], 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 Crl.A.No.1765 of 2006 13 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”. 28. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6 certificate of chemical analysis. 29. Ext.P6, certificate of chemical analysis, would show that the sample reached the laboratory on 10.11.2003. But the sample was analysised only on 26.11.2004. The prosecution has not offered any explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 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 Crl.A.No.1765 of 2006 14 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.” 30. In the instant case, the delay of more than one year in the analysis of the sample remains unexplained. 31. 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. 32. 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 contraband substance said to have been seized from the possession of the accused. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3 SCC Crl.A.No.1765 of 2006 15 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 33. 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 as discussed above. 34. 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 8(2) 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