Murali v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **FRIDAY, THE 16TH DAY OF AUGUST 2019 / 25TH SRAVANA, 1941** ## **CRL.A.No.1772 OF 2006** **AGAINST THE JUDGMENT IN SC 542/2004 DATED 28-07-2006 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, ALAPPUZHA** ## **APPELLANT/ACCUSED:** **MURALI AGED 37 YEARS S/O. DAMODARAN, THANAPARAMBIL HOUSE,, RAMAPURAM MURI, KEERIKKADU VILLAGE, KAYAMKULAM.** **BY ADV. SRI.S.SHANAVAS KHAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **PP. SMT. MAYA M.N.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25-07-2019, THE COURT ON 16-08-2019 PASSED THE FOLLOWING:** Crl.A.No.1772/2006 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1772 of 2006 ----------------------------------------------Dated this the 16[th] day of August, 2019 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.542/2004 on the file of the Court of Session, Alappuzha. The appeal is filed assailing the conviction entered and sentence passed against him under Sections 55(i) and 8(1) read with 8(2) of the Abkari Act, 1077. 2. The prosecution case is as follows: On 06.12.2002, at about 11.45 hours, when PW5 Circle Inspector and the police party with him reached the place Ramapuram, near the PIP canal there, they saw the appellant selling arrack to another person. On seeing the police party, the appellant as well as the person who purchased arrack from him ran away from the spot and tried to escape. The police party chased the appellant and apprehended him. He was carrying a bottle containing arrack. Crl.A.No.1772/2006 3 PW5 found another bottle at the place where the appellant was standing and it also contained arrack. PW5 took samples of liquid from each bottle and sealed and affixed label on them and seized the articles as per Ext.P1 mahazar. PW5 arrested the appellant from the spot. He reached Kareelakulangara police station and entrusted the seized articles and the appellant there. 3. The appellant pleaded not guilty to the charge framed by the trial court under Sections 55(a), 55(i) and 8(1) read with 8(2) of the Abkari Act. Thereupon, the prosecution examined PW1 to PW6 and marked Exts.P1 to P6 and MO1 to MO4. DW1 was examined on the side of the appellant/accused. 4. The trial court found the appellant not guilty of the offence punishable under Section 55(a) of the Abkari Act and acquitted him of that offence. The trial court found the appellant guilty of the offences punishable under Sections 55(i) and 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The trial court sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a Crl.A.No.1772/2006 4 period of three months for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act . No separate sentence was awarded under Section 55(i) of the Abkari Act. 5. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records. 6. PW2 and PW3 are the independent witnesses examined by the prosecution. They did not support the prosecution case regarding the occurrence. But, they admitted their signature in Ext.P1 mahazar. 7. PW5 is the Circle Inspector who detected the alleged offence. He has given evidence regarding the occurrence almost in tune with the prosecution case. PW1 was the police constable who was in the police party led by PW5. His evidence, more or less, corroborates the testimony of PW5 on the material particulars of the occurrence. 8.There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW5 regarding the seizure of two bottles which contained liquid from the possession of the appellant. There is nothing to show that PW5 had falsely Crl.A.No.1772/2006 5 implicated the appellant in a case of this nature. 9. DW1 is a neighbour of the appellant. He has given evidence that the appellant/accused was arrested by PW5 from his house (the house of the accused) and then, he was present there. Not even a suggestion was made to PW5 in the cross examination that the accused was arrested from his house. When examined under Section 313 Cr.P.C, the accused has not stated that he was arrested by the police from his house. In such circumstances, the evidence of DW1 in that regard cannot be accepted as reliable and trustworthy. 10. In the aforesaid circumstances, there is no sufficient ground to disbelieve the evidence of PW1 and PW5 regarding the seizure of two bottles containing liquid from the possession of the appellant. There is also no reason to disbelieve their evidence that they saw the appellant pouring some liquid from one of the bottles into a glass. 11. However, seizure of two bottles containing some liquid from the possession of the appellant does not prove any of the offences alleged against him. Conviction of the appellant in the Crl.A.No.1772/2006 6 case is possible only on proof that the liquid contained in the bottles was arrack or some other liquor. 12. Ext.P6 is the certificate of chemical analysis conducted in respect of the samples of liquid which were sent for analysis. Ext.P6 certificate shows that the samples of liquid contained ethyl alcohol. 13. Learned counsel for the appellant contended that there is doubt as to whether the very same samples of the liquid taken by PW5 at the spot were produced before the court and sent for chemical analysis and therefore, there is no assurance that Ext.P6 certificate relates to the liquid seized from the possession of the appellant. 14. _Per contra_ , learned Public Prosecutor contended that there is nothing to suspect that the sample was tampered with by any person and therefore, there can be no doubt with regard to the fact that Ext.P6 certificate of chemical analysis relates to the liquid contained in the bottles seized from the possession of the appellant. 15. PW5 has given evidence that he had affixed label on Crl.A.No.1772/2006 7 the sample bottles and also the bottles containing the residue and that the label contained his signature and also the signature of the witnesses. Ext.P1 mahazar also contains a recital to that effect. PW4 Sub Inspector had produced the properties, including the samples, in the court as per Ext.P4 property list. The description of the properties given in Ext.P4 list does not show that there was any label on the sample bottles or the bottles containing the residue of the liquid. Ext.P5 is the copy of the forwarding note prepared by PW4 for sending the samples for chemical analysis. The description of the samples given in Ext.P5 forwarding note also does not reveal that there was any label on the sample bottles. 16. There is another lacuna in the prosecution case. PW5 has given evidence that the bottles, in which the samples of liquid were taken, were sealed by him at the spot of the occurrence. Ext.P4 property list also shows that the sample bottles had seal on them. However, PW5 has not given any evidence regarding the nature of the seal affixed on the articles, including the sample bottles. The nature of the seal used is not Crl.A.No.1772/2006 8 mentioned in Ext.P1 mahazar. The specimen impression of the seal used is not affixed in the mahazar. PW5 has given evidence that he had not produced in the court the specimen of the seal used. The property list and the forwarding note were prepared by PW4 Sub Inspector. PW5 has no case that he had provided the seal used by him to PW4. Then, there is no chance at all for PW4 to affix the impression of that seal either on Ext.P5 copy of the forwarding note or on its original. There is no material to show that the specimen impression of the seal made in Ext.P5 forwarding note prepared for sending the samples for chemical analysis was the specimen of the seal affixed by PW5 on the sample bottles. In view of these facts, there is no assurance that the very same samples of the liquid seized by PW5 from the appellant had, in fact, reached the chemical examiner for analysis. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See **Krishnan v. State : 2015 (1) KHC 822** ). 17. Proof of mere seizure of liquid from the possession of a Crl.A.No.1772/2006 9 person is not sufficient to establish that he/she had committed an offence punishable Section 55(i) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized or sold was arrack or any other 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 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 allegedly seized from the possession of the accused. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner. 18. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Crl.A.No.1772/2006 10 Kerala (2007 (1) KLT 720)]. Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. State of Kerala : AIR 1994 SC 117). 19. The principles mentioned earlier get support also from the very recent decision of the Supreme Court in **Vijay Pandey** **v. State of Uttar Pradesh** (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019) wherein it has been 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 - co related”._ (emphasis supplied). 20. In the instant case, the defects in the list of property prepared for producing the properties, including the samples, before the court and also the defect in the forwarding note noticed earlier, create doubt as to whether the very same Crl.A.No.1772/2006 11 samples of liquid taken at the spot of the occurrence by PW5 were forwarded for chemical analysis. The benefit of this doubt should go to the accused. 21. The upshot of the discussion above is that the conviction entered and sentence passed against the appellant cannot be sustained. The appellant is entitled to be acquitted. 22.Consequently, the appeal is allowed. The conviction entered against the appellant under Sections 55(i) and 8(1) read with 8(2) of the Abkari Act and the sentence passed against the appellant by the trial court under Section 8(1) read with 8(2) of the Abkari Act are set aside. The appellant is found not guilty of the aforesaid offences and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr True copy PS TO JUDGE Crl.A.No.1772/2006 12