Mohandas v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944** **CRL.A NO. 1829 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 581/2006 OF ADDITIONAL SESSIONS** **COURT (FAST TRACK NO.II-ADHOC), THRISSUR** ## **APPELLANT/ACCUSED:** MOHANDAS, S/O VASU, THOZHUPADAM DESOM, PAIMKULAM VILLAGE, THALAPPILLY TALUK. BY ADV SRI.BINOY VASUDEVAN ## **RESPONDENTS/PETITIONER/STATE:** 1 STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 EXCISE INSPECTOR, WADAKKANCHERRY. BY ADV SRI.RAJESH.A, SENIOR PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1829 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.1829 of 2008 --------------------------------------Dated this the 14[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 02.08.2008, passed by the Additional Sessions Court (Fast Track No.II-Adhoc), Thrisuur in S.C.No.581/2006, the accused has preferred this appeal. The appellant was convicted under Section 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 13.11.2004 at 2.00 p.m, the accused was found in possession of 200 litres of wash meant for preparation of arrack by southern side of Bharathapuzha river in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from Crl.A No.1829 of 2008 3 where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P13 and MOs 1 and 2 . 5. After the closure of the prosecution evidence, 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 evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. Binoy Vasudevan, the learned counsel appearing for the appellant/accused and Smt. Rajesh A, the learned Senior Public Prosecutor appearing for the respondents. Crl.A No.1829 of 2008 4 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the sample was forwarded to the laboratory in a tamper-proof condition. 8. The learned counsel relied on the following circumstances to substantiate his contentions: - (a) Exhibit P4 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) Exhibit P10 forwarding note/requisition for sending sample does not contain the name of the official with whom the sample was forwarded to the laboratory and the date on which the learned Magistrate countersigned the same. - (c) The prosecution has not explained the custody of the sample during the period from 13.01.2005 - to 14.01.2005. ## Crl.A No.1829 of 2008 5 9. The appellant/accused was arrested and seizure was effected on 13.11.2004 by the Preventive Officer of Excise, Wadakkanchery Excise Range (PW1). PW1 had drawn sample at the scene of occurrence. He had prepared Ext.P4 seizure mahazar to evidence seizure and arrest. Exhibit P4 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1, the detecting officer, has not given evidence as to the nature of the seal used. 10. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. Exhibit P10, the copy of the forwarding note/requisition for sending sample does not contain the name of the officer with whom the sample was forwarded to the laboratory. The space meant for entering the name of the official with whom the sample was forwarded to the laboratory remained vacant. Though the learned Crl.A No.1829 of 2008 6 Magistrate countersigned Ext.P10, the date on which he made his initial is not mentioned therein. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. 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 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, Crl.A No.1829 of 2008 7 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.” 12. In the present case, the prosecution has not examined the property clerk of the Court and the Excise guard who delivered the sample to the laboratory to rule out the possibility of the sample being changed or tampered with. Non-examination of the property clerk of the Court and the Excise guard who delivered the sample to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P13 Chemical Analysis Report has no evidentiary value. Crl.A No.1829 of 2008 8 14. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 15. 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 contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 16. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 17. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the Crl.A No.1829 of 2008 9 matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS