MANOJ S/O NARAYANAN v STATE OF KERALA

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **CRL.A NO. 1169 OF 2008** **AGAINST THE JUDGMENT DATED 14.5.2008 IN S.C.NO.185/2007 OF IVTH ADDITIONAL SESSIONS COURT (ADHOC-II), THODUPUZHA** **APPELLANT/ACCUSED:** **MANOJ S/O.NARAYANAN, PUNNAMMOOTTIL, PEPPARA KARA, IDUKKI VILLAGE.** **BY ADVS. SRI.RENJITH B.MARAR SRI.L.RAJESH NARAYAN** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1169/2008 ## _**JUDGMENT**_ _Dated this the 8[th] day of July, 2021_ Aggrieved by the judgment dated 14.5.2008, passed by the learned Additional Sessions Judge (Adhoc-II), Thodupuzha, in Sessions Case No.185 of 2007, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 1.6.2006, at 4.30 P.M. in the landed property owned by one Alexander at Peppara Kara in Idukki Village, the accused was found possessing two litres of arrack in a can having a capacity of ten litres. The Sub Inspector of Police, Idukki Police Station, detected the offence and registered Crime No.147 of 2006 alleging offence punishable under Section 8(2) of the Abkari Act. 3. After completion of 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-I, Idukki. The case was committed to the Sessions Court, Thodupuzha, from where it was made over to the Additional Sessions Court (Adhoc) II, Thodupuzha. 3 Crl.A.No.1169/2008 4. On appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 5. The prosecution examined PWs 1 to 7 and proved Exhibits P1 to P10 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. 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 evidence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence punishable under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. 7. I have heard Sri.B.Renjith Marar, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent/ State. 4 Crl.A.No.1169/2008 8. The learned counsel for the appellant submitted that the prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence ultimately reached the hands of the analyst at the Chemical Examiner’s laboratory. 9. The learned public prosecutor, per contra, 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 accused are sustainable or not. The Point : 11. PW3, the Sub Inspector of Police, Idukki Police Station, has given evidence that on 1.6.2006, on getting reliable information that one Punnamoottil Manoj (accused) was engaged in the sale of illicit arrack in the uninhabited property of one Alexander at Peppara, he proceeded to the spot and found the accused carrying a can having a capacity of ten litres. PW3 deposed that on seeing the police party, the accused jumped to Peppara - 56 Colony Road, from the place of occurrence after abandoning the can. In the incident, the accused sustained 5 Crl.A.No.1169/2008 injuries and he was sent to the District Hospital, Idukki. PW3 has stated that the can possessed by the accused had contained two litres of illicit arrack. He collected sample in two bottles, each containing 180 ml. of arrack, and sealed the same. PW3 prepared Exhibit P1 seizure mahazar and registered Exhibit P3 FIR on the basis of it. PW4, the Assistant Sub Inspector, Idukki Police Station, who had accompanied PW3, supported the prosecution case. PWs 1 and 2, the independent witnesses examined to prove the incident proper, did not support the prosecution case. PW5, the S.I. of Police, Idukki, conducted investigation and submitted final report. 12. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence ultimately reached the Chemical Examiner’s laboratory. 13. The learned counsel for the appellant relied on the following circumstances to substantiate his contention. (a) The detecting officer (PW3) and the other official witness (PW4), who had accompanied PW3, had not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. 6 Crl.A.No.1169/2008 (b) There is no convincing evidence as to the date on which the contraband articles, including the sample, were forwarded to the court. PW3, the detecting officer, was unaware of the police official who brought the articles to the court. (c) Copy of the forwarding note (Exhibit P5) is silent regarding the name of the official with whom the sample was sent to the Chemical Examiner’s laboratory and the date on which the same was forwarded. 14. The specimen impression of the seal stated to have been affixed on Exhibit P1 mahazar is not legible. PW3 and PW4 have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. 15. The detecting officer, who had drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample [Vide : _**Bhaskaran v. State of Kerala and another** (2020 KHC 5296)_ and _**Krishnadas v. State of Kerala**_ (2019 KHC 191)]. In the instant case, the detecting officer, has not given evidence as to the nature of the seal affixed on the bottle containing the sample. This is an infirmity affecting the prosecution case. 16. PW3 gave evidence that the articles seized, including 7 Crl.A.No.1169/2008 the sample, were forwarded to the court through a police constable. He was unaware of the name of the police official with whom the articles, including the sample, were forwarded to the court and the date on which the articles were forwarded. He has also not given evidence that the thondi articles, including the sample, were in his safe custody. There is no convincing evidence regarding the date on which the properties, including the sample, reached the court. 17. Exhibit P5, copy of the forwarding note, whereby the sample was forwarded to the Chemical Examiner 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 a police constable No.2257. The name and details of the police official, who delivered the sample in the laboratory, have not been mentioned in the copy of the forwarding note. The learned Magistrate has not written the date on which he affixed his initials in the forwarding note. 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_ 8 Crl.A.No.1169/2008 _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 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 tamper-proof 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.”_ ## 18. In the instant case, it was imperative for the prosecution to examine the thondi clerk of the court or the police official who produced the bottles containing the sample before 9 Crl.A.No.1169/2008 the court and also the police official who received the sample from the court to be delivered to the laboratory to establish tamper proof despatch of the sample. 19. It has come out in evidence that the sample changed several hands before reaching the Chemical Examiner’s laboratory. The sample remained in the custody of the police official who brought the same from the police station to the court, the thondi clerk of the court, the police official who received the sample from the court and the police constable No.2257 who delivered the same to the Chemical Examiner’s laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. 20. In _**State of Rajasthan v. Daulat Ram** [AIR 1980 Supreme Court 1314]_ , the Apex Court, while considering a case in which the samples changed several hands before reaching the public analyst and yet none of those witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with, held that the inevitable effect of this omission is that the prosecution failed to rule out the possibility of samples being changed or tampered with during the relevant period - a fact which had to be proved affirmatively by the prosecution. In 10 Crl.A.No.1169/2008 _**Vijay Pandey v. State of Uttar Pradesh** [AIR 2019 SC 3569]_ , the Apex Court held that mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The Apex Court held that the sample seized and that tested have to be co-related. 21. In the instant case, the prosecution failed to establish the tamper proof despatch of the samples to the Chemical Examiner’s laboratory. In such a situation, no evidentiary value can be given to Exhibit P6 certificate of chemical analysis. 22. It is well 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 drawn from the contraband substance allegedly seized from the possession of the accused. 23. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband substance seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of the link evidence as discussed. 24. The conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. 11 Crl.A.No.1169/2008 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 Criminal Appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl