NADARAJAN @ SELVARAJAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **CRL.A.No.325 OF 2011(A)** **AGAINST THE JUDGMENT IN SC 153/2007 DATED 04-02-2011 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC) FAST TRACK-I, PATHANAMTHITTA** **AGAINST THE JUDGMENT IN CP 19/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADOOR** ## **APPELLANT/ACCUSED:** **NADARAJAN @ SELVARAJAN, S/O SIVARAMAN MULLANVATHUKKAL VEEDU,ALANKODU,MEZHUVELI,(FROM SYAM BHAVAN,CHENNERKKARA.).** **BY ADVS. SRI.P.HARIDAS SMT.S.SIKKY** ## **RESPONDENTS/STATE/COMPLAINANT:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM.** - **2 THE SUB INSPECTOR OF POLICE, PANDALAM- 689 787.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22-06-2020, THE COURT ON 25-06-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.325 OF 2011(A)** **2** ## **R. NARAYANA PISHARADI, J ---------------------------------------------Crl.A. No. 325 of 2011** **-----------------------------------------------** Dated this the 25[th] day of June, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No.153/2007 on the file of the Court of the Additional Sessions Judge, Pathanamthitta. 2. The prosecution case is as follows: On 24.06.2006, at about 18:15 hours, PW2 Sub Inspector and the police party with him, reached the house No.298 in Ward No. IV of Mezhuveli Panchayath, on getting information that the accused/appellant was selling arrack there. When they reached the aforesaid house, they saw the accused standing at the courtyard of the house with a can and a glass. On seeing the police party, the accused abandoned the can and the glass and ran away and escaped from the place. Though the police party chased him, they could not apprehend him. PW2 Sub Inspector examined the contents of the can. It contained about five litres of arrack. PW2 took sample of the liquid from the can and seized the **CRL.A.No.325 OF 2011(A)** **3** sample and the can containing the residue. He returned to the police station and registered case against the accused as Crime No. 267/2006 of Pandalam Police Station. 3. Another Sub Inspector conducted the investigation of the case and filed final report against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. 4. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused/appellant pleaded not guilty to the offence and claimed to be tried. 5. The prosecution examined PW1 and PW2 and marked Exts.P1 to P8 documents and MO1 and MO2 material objects. The property clerk of the Magistrate's Court concerned was examined as CW1 and Exts.C1 and C2 documents were also marked. No evidence was adduced by the accused. 6. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of two years and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of six months. **CRL.A.No.325 OF 2011(A)** **4** 7. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 8. Heard. Perused the records. 9. PW2 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW1 is the police constable who was in the police party led by PW2. His evidence corroborates the testimony of PW1 regarding the material particulars of the occurrence. 10. Ext.P5 is the chemical examination report received in respect of the sample which was sent for analysis. It shows that the sample of liquid contained 39.27% by volume of ethyl alcohol. 11. On a perusal of the judgment of the trial court and the evidence adduced by the prosecution, I find it difficult to sustain the conviction entered against the accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act. The reasons are as follows. 12. The evidence of PW1 and PW2 is that, when they reached the house in question, they saw a person standing at the courtyard of the house with a can and a glass and on seeing the police party, he abandoned those articles and ran away and escaped from there. PW1 and PW2 identified the accused in the court as the person who abandoned the can and the glass and ran away from the place. **CRL.A.No.325 OF 2011(A)** **5** 13. The evidence of PW1 and PW2 regarding identification of the accused in the court as the culprit cannot be accepted as reliable and trustworthy. Admittedly, on seeing the police party, the person who was standing at the courtyard of the house with the can and the glass in his hands, had run away and escaped. The police party could have only a fleeting glimpse of that person. The occurrence was on 24.06.2006 at 18:15 hours. PW1 and PW2 gave evidence before the court in the year 2010, more than four years after the occurrence. The physical features or any peculiar marks of identification of the person who had run away and escaped from the place are not mentioned in Ext.P1 seizure mahazar or Ext.P2 first information report. In such circumstances, identification of the accused in the court by PW1 and PW2 as the culprit does not inspire confidence. 14. The fact that Ext.P1 seizure mahazar and Ext.P2 first information report mention the name of the accused as the offender can have no significance. The evidence of PW2 Sub Inspector is that the police party chased the person who ran away from the place. They could not apprehended him and when they returned, the independent witnesses were there and on enquiry, they told the police the name of the accused as the name of the person who ran away from the place. The prosecution has no definite case that the independent witnesses **CRL.A.No.325 OF 2011(A)** **6** had accompanied the police party when they reached the house. In such circumstances, especially in the absence of the evidence of the independent witnesses, who had allegedly told the name of the offender to the police party, the mere fact that the accused was named as the offender in the seizure mahazar and the first information report is not sufficient to prove that he was the offender. 15. There is a specific recital in Ext.P1 seizure mahazar that PW2 Sub Inspector took sample of the liquid from the can and sealed the sample bottle and the can containing the residue and affixed label, bearing his signature and the signature of the witnesses, on the can and the sample bottle. Ext.P3 is the property list prepared by PW2 for producing the material objects before the court. The description of the can and the sample bottle given in Ext.P3 property list does not show that there was any label on the can or the sample bottle. Therefore, there is no assurance that the very same sample which was allegedly drawn by PW2 at the spot of the occurrence was produced before the court without any tampering. 16. Ext.C1 is the extract of the property register kept in the Magistrate's Court concerned. It contains the description of the properties produced by PW2 before the court. The description of the properties given in Ext.C1 document also does not show that there **CRL.A.No.325 OF 2011(A)** **7** was any label bearing the signature of PW2 and the witnesses on the sample bottle or the can. 17. Ext.P4 is the copy of the forwarding note submitted by PW2 before the court for sending the sample for chemical analysis. It does not bear the specimen of the seal which was used by PW2 for sealing the sample bottle. Ext.P1 seizure mahazar as well as the evidence of PW2 is silent regarding the nature of the seal used by PW2 for sealing the sample bottle. In such circumstances, there is no assurance that the very same sample which was allegedly drawn by PW2 at the spot of the occurrence was produced before the court and sent for analysis as per Ext.P4 forwarding note and it had reached the laboratory in a tamper proof condition and tested there. 18. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has 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". 19. Proof of mere seizure of any liquid is not sufficient to **CRL.A.No.325 OF 2011(A)** **8** establish commission of an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon the 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 seized from the possession of the accused. 20. The above mentioned vital aspects have not been considered by the trial court while appreciating the prosecution evidence. In such circumstances, I find that the conviction entered against the accused/appellant by the trial court cannot be sustained. 21. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at **CRL.A.No.325 OF 2011(A)** **9** liberty. Fine amount, if any, remitted by him shall be refunded to him. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn