Mani s/o Mani v. State of Kerala

Crl.A No.2216/2006 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 4[TH] DAY OF AUGUST 2021 / 13TH SRAVANA, 1943 CRL.A NO. 2216 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 239/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA, IDUKKI APPELLANT/ACCUSED No.1:** MANI S/O MANI,MARAYOOR PANCHAYATH, CHERUVADU ST.COLONY, MARAYOOR VILLAGE. BY ADVS. SRI.C.M.TOMY SRI.MATHEW SKARIA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR **OTHER PRESENT:** SRI. ASHI M.C. (P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2216/2006 2 ## **K.BABU, J. ========================= Crl.A No.2216 of 2006** **==========================** Dated this the 4[th] day of August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 20.10.06 passed by the Additional Sessions court (Adhoc)-II, Thodupuzha in S.C. No.239/2006. 2. By the impugned judgment, the appellant and the other accused were convicted of the offence punishable under Section 8(2) of the Abkari Act. 3. The accused No.1 is the appellant herein. 4. The prosecution case is that on 30.5.2005 at 11.10 a.m., the appellant and the other accused were found possessing 9 litres of illicit arrack in a 10 litre can at the house of the former at Cheruvadu S.T.colony. The offence was detected by the Assistant Police Sub Inspector, Marayoor Police Station. 5. After completion of the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act, before the Judicial First Class Magistrate Court, Devikulam. The case was committed to the Crl.A No.2216/2006 3 Sessions Court, Thodupuzha from where it was made over to the trial court. 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 6, Exts.P1 to P7 and M.O.1. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. After completion of the evidence, the trial court heard the matter under Section 232 Cr.P.C and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence if any, they may have in support thereof. 8. The learned trial court after hearing both sides, found that the accused are guilty of offence punishable under Section 8(2) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo rigorous imprisonment for one year each and to pay a fine of Rs.1,00,000/- (Rupees One lakh only) each. 9. Heard Adv. Sri. C.M.Tomy, the learned counsel Crl.A No.2216/2006 4 appearing for the appellant/accused No.1 and Sri. M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 10. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substances allegedly seized from the possession of the accused eventually reached 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 No.1 are sustainable or not. ## **THE POINT.** 13. PW5, the detecting officer, has given evidence that on 30.5.2005 at 11.10.a.m., on getting information that the two accused were apprehended by the local people for having possessed illicit arrack, he proceeded to the place of occurrence and arrested them. PW5 seized the contraband substance from the possession of the accused. He collected sample in two 180 ml bottles and sealed the same. 14. PW1, the President of the Marayoor Grama Panchayat, did not support the prosecution case. PWs.2 to 4 also Crl.A No.2216/2006 5 did not support the prosecution. 15. PW6 submitted final report. 16. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substances allegedly recovered from the place of occurrence eventually reached the hands of the chemical examiner. 17. The detecting officer has not given evidence as to the nature of the seal affixed on the bottle containing the contraband articles. 18. In **Bhaskaran v. State of Kerala and another (2020 KHC 5296),** while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: “21. 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 the Court to satisfy the genuineness of the sample produced in the court (See **Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145** ). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only Crl.A No.2216/2006 6 when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See **Majeedkutty v. Excise Inspector : 2015 (1) KHC 424** ). When the specimen of the seal affixed on the sample bottle 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 bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See **Rajamma v. State of Kerala : 2014(1) KLT 506** )” (Emphasis supplied) ## 19. In **Krishnadas v. State of Kerala (2019 KHC 191)** ## this Court held thus: “7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied). 20. The learned counsel further submitted that Ext.P6, the copy of the forwarding note, does not contain the name of the official with whom the sample was sent for chemical analysis and the same was not counter signed by the learned magistrate concerned. The date on which the sample was forwarded to the laboratory is also not recorded in Ext.P6. Ext.P7, the certificate Crl.A No.2216/2006 7 of chemical analysis, would show that the bottles containing sample were received in the chemical examiner's laboratory as per letter No.PR72/05 dated 4.6.2005 of the Judicial First Class Magistrate, Devikulam. The necessary inference is that in the absence of any contra evidence, the bottles containing the sample were handed over to the police official concerned on 4.6.2005. But Ext.P7 would further show that the bottles containing the sample were received in the laboratory only on 2.11.2005, almost after four months. The covering letter dated 4.6.2005 of the Judicial First Class Magistrate court, Devikulam would show that the bottles containing the sample were handed over to Sri.Jose Varghese, Police constable No.2354. 21. While dealing with a similar fact situation this Court in **Viswanadhan v. State of Kerala (2016 (3) KHC 38** held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” ## 22. The prosecution has not offered any satisfactory explanation for this delay. The prosecution ought to have Crl.A No.2216/2006 8 examined the police official concerned who received the sample on 4.6.2005 from the court, to establish the tamper proof despatch of the sample. 23. It is the admitted case of the prosecution that the sample remained in the custody of the property clerk of the court and Sri. Jose Varghese, the police official concerned. None of the witnesses were examined by the prosecution to prove that while in their custody the seals were 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 - a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** . 24. 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 the contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 25. 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 Crl.A No.2216/2006 9 alleged contraband substance said to have been seized from the possession of the accused. 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 appellant/accused No.1 is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 26. The upshot of the above discussion is that the conviction entered by the court overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused No.1 is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. This Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** al/-