Madhusoodhanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 02ND DAY OF JULY 2020 / 11TH ASHADHA, 1942** ## **CRL.A.No.293 OF 2007** **AGAINST THE JUDGMENT DATED 08.02.2007 IN SC 46/2004 OF ADDITIONAL SESSIONS JUDGE(ADHOC) FAST TRACK COURT NO.1, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **MADHUSOODHANAN, S/O. PADMBANABHAN, KAVUMMURIYIL VEEDU, VALLICODE KARA AND VILLAGE, KOZHENCHERRY TALUK.** **BY ADV. SRI.V.SETHUNATH** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24-06-2020, THE COURT ON 02-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.293/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.293 of 2007 -----------------------------------------Dated this the 2[nd] day of July, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.46/2004 on the file of the Court of the Additional Sessions Judge, Pathanamthitta. 2. The prosecution case is that, on 20.10.2001, at about 11:30 hours, PW5 Excise Circle Inspector conducted search of the house of the accused in Vallikodu Panchayath and it was then found that the accused had kept rectified spirit in eight cans, each having the capacity of 35 litres. 3. The trial court framed charge against the accused for the offences punishable under Sections 55(a) and 8(1) read with 8(2) of the Abkari Act. The accused pleaded not guilty to the offences and claimed to be tried. Crl.A.No.293/2007 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P9 documents and MO1 to MO8 material objects. DW1 was examined on the side of the accused. 5. The trial court found the accused not guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and acquitted him of that offence. The trial court found the accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard. Perused the records. 8. PW5 is the Excise Circle Inspector who detected the offence. He has given evidence with regard to the occurrence in detail. PW1 is the excise guard who was in the excise party led Crl.A.No.293/2007 4 by PW5. His evidence corroborates the testimony of PW5 regarding the occurrence. 9. PW2 and PW3 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. 10. Ext.P8 is the chemical examination report received in respect of the samples which were sent for analysis. It shows that the samples of liquid contained ethyl alcohol and that the liquid was rectified spirit. 11. On a perusal of the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the appellant/accused. The reasons are as follows. 12. PW5 has given evidence that he took samples of liquid from the eight cans and that he sealed the sample bottles and affixed label, bearing his signature and also the signature of the witnesses, on the sample bottles. There is also recital in Ext.P1 seizure mahazar that the bottles containing the samples were Crl.A.No.293/2007 5 sealed and that label, bearing the signature of PW5 and the witnesses and the accused, was affixed on the sample bottles at the spot of the occurrence. 13. The evidence of PW5 is that he produced the accused and the articles and the records before the Excise Inspector of Konni Excise Range. Ext.P6 is the crime and occurrence report prepared by the Excise Inspector. The description of the sample bottles given in Ext.P6 report does not show that there was any label, bearing the signature of PW5 and the witnesses and the accused, on them. The Excise Inspector had produced the material objects, including the samples, before the court as per Ext.P7 property list. The description of the sample bottles given in Ext.P7 property list does not show that there was any label, bearing the signature of PW5 and the witnesses and the accused, on them. 14. In the aforesaid circumstances, there is no assurance that the very same samples allegedly drawn by PW5 at the spot of the occurrence were produced by PW5 before the Excise Inspector. It follows that there is no assurance that the Excise Crl.A.No.293/2007 6 Inspector had produced the very samples allegedly drawn at the spot of the occurrence before the court and they were sent for analysis. It further follows that, there is also no assurance that the very same samples, which were allegedly drawn from the liquid contained in the cans, were tested in the laboratory and that Ext.P8 chemical examination report relates to such samples. 15. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the samples for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ) Crl.A.No.293/2007 7 ## 16. In **Vijay Pandey v. State of U.P: AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself._ The sample seized and that tested have to be corelated". 17. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a Crl.A.No.293/2007 8 prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 18. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the appellant/accused is entitled to be acquitted. 19. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 55(a) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him, shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True Copy PS to Judge