Muthila @ Chandran v. State

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF JUNE 2023 / 2ND ASHADHA, 1945** ## **CRL.A NO. 846 OF 2007** **AGAINST THE ORDER/JUDGMENT SC 1365/2001 OF ADDITIONAL SESSIONS** **COURT.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** **APPELLANT/ACCUSED:** **MUTHILA @ CHANDRAN PERAKKADU VEEDU,, KAVALAKULAM, PERUMPAZHTHOOR VILLAGE,, NEYYATTINKARA TALUK.** ## **BY ADV B.KRISHNA MANI** ## **RESPONDENTS/COMPLAINANT:** - **1 THE STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE, THIRUPURAM.** - **2 THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM** **BY ADV PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 846 OF 2007 2 **==> picture [80 x 14] intentionally omitted <==** -------------------------------------- ## CRL.A.No.846 of 2007 --------------------------------------- Dated this the 23[rd] day of June, 2023 ## **J U D G M E N T** This appeal arises from S.C.No.1365/2001 of the Additional Sessions Court for the trial of Abkari Act cases, Neyyattinkara. The appellant is convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The appellant in this case is no more. The near relatives of the appellant have not turned up. As the sentence challenged is a composite sentence of fine and imprisonment, the appeal shall not abate in view of the ratio in **Ramesan(Dead) through Lr.Girija A. v. State of Kerala[(2020) 3 SCC 45].** This Court is bound to decide the appeal on merits. 3. The prosecution case is that on 07.05.1999, at 01.00 pm, the accused was found in possession of a can CRL.A NO. 846 OF 2007 3 containing 5 litres of arrack at Athiyannoor, in violation of the provisions of the Abkari Act. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from 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 58 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. 5. The prosecution examined PWs. 1 to 4 and proved Exts.P1 to P10, and MO1. 6. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.PC 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 CRL.A NO. 846 OF 2007 4 have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 58 of the Abkari Act and convicted him thereunder. 7. Heard Sri.B.Krishna Mani, the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 9. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (1) The procedure adopted by the jurisdictional Magistrate directing the property clerk of the Court to draw the sample from the bulk quantity of the arrack produced before the Court has no sanction of law. (2) The specimen of the seal was not forwarded to CRL.A NO. 846 OF 2007 5 the Chemical Examiner to ascertain the genuineness of the sample delivered for analysis. 10. In the present case, the detecting officer had not drawn the sample at the scene of occurrence. The detecting officer produced the bulk quantity of the arrack seized from the place of occurrence before the Court. The learned Magistrate directed the property clerk of the Court (PW4) to draw sample from the arrack produced before the Court. The Property Clerk drew the sample and forwarded to the Chemical Examiner's Laboratory. 11. The legality of the procedure adopted by the learned Magistrate directing the officials of the Court to draw the sample from the contraband substance produced before the Court was considered by this Court in _**Baburaj v. State**_ _**of Kerala (2021 (6) KLT 416),**_ wherein it was held thus; “ 35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the - contraband himself is irreconcilable. The water tight compartments provided for the investigator and the Court in a criminal prosecution cannot, at any rate, be allowed to CRL.A NO. 846 OF 2007 6 be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala [2019 (2) KLT 974]** , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In _**Baby v. State of Kerala [2020 (2) KLT 590]**_ , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the Court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the ” detecting officer. (emphasis added) 12. In _**Baburaj's case**_ (supra) this Court further held CRL.A NO. 846 OF 2007 7 that, as the procedure adopted in drawing the sample from the contraband substance produced before the Court has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis so prepared. 13. The forwarding note shows that the specimen of the seal was not forwarded to the Laboratory. The Chemical Examiner had no opportunity to ascertain the genuineness of the sample produced before the Court. 14. In **Rajamma v. State of Kerala [2014 (1) KLT 506]** , this Court held that if the specimen of the seal affixed on the bottle containing the sample 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, no evidentiary value can be attached to the Chemical Analysis Report. 15. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with the contraband seized, and the sample analysed in the laboratory. 16. The upshot of the above discussion is that the CRL.A NO. 846 OF 2007 8 conviction and sentence entered by the Court below overlooking these vital aspects of the matter, cannot, therefore, be sustained. The conviction and sentence passed by the Court below stand set aside. The appeal is allowed as above. Sd/- **K. BABU JUDGE** ## **saap**