Nalini, W/o Unnikrishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 24[TH] DAY OF AUGUST 2022 / 2ND BHADRA, 1944 ``` ``` CRL.A NO. 490 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 17.01.2011 IN SC 200/2010 OF ``` ``` ADDITIONAL SESSIONS COURT, FAST TRACK-II, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` NALINI, W/O UNNIKRISHNAN, PANTHAM VEEDU, PERUMUDIYUR DESOM, MUTHUTHALA VILLAGE, OTTAPALAM TALUK. ``` ``` BY ADV SRI.P.K.MOHANAN(PALAKKAD) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA S., SR.PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 24.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.490 of 2011 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A No. 490 of 2011 --------------------------------------------- Dated this the 24[th] day of August, 2022 **JUDGMENT** Aggrieved by the judgment dated 17.01.2011, passed by the Additional Sessions Court (Fast Track )-II. Palakkad, in Sessions Case No.200 of 2010, the accused has preferred this appeal. The appellant/ accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 04.09.2007 at 8.30 a.m. the accused was found in possession of 5 litres of arrack in a can at Perumudiyar Desom in Muthuthala Village of OttapalamTaluk, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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 her for the offence punishable under ``` Crl.A.No.490 of 2011 ``` ``` 3 ``` Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P9, and MO1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted her thereunder. 6. Heard Sri.P.K.Mohanan, the learned counsel appearing for the appellant/accused and Smt.Rekha S., the Public Prosecutor for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds: (1) The prosecution failed to establish the identity of the person who was carrying the contraband substance at the place of occurrence. ``` Crl.A.No.490 of 2011 ``` ``` 4 ``` (2) The prosecution failed to establish that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The seizure was effected by PW1, the Preventive Officer, Excise Range Pattambi, on 04.09.2007. PW2, the Excise Guard attached to the Excise Office had accompanied PW1. The case of the prosecution is that at the place of occurrence a lady was found carrying a plastic can. She was intercepted by the Excise team. On further verification it was found that the can contained illicit arrack. According to the prosecution, she could not be arrested as no women police officer was available. 9. PWs 1 and 2, the official witnesses admitted that they had no previous acquaintance with the accused. The accused was arrested two years after the incident by the Excise Inspector. 10. The learned counsel for the appellant/accused contended that the identification of the accused could not be established by the prosecution as there is no convincing evidence to show the presence of the accused at the scene of occurrence. 11. The learned counsel has taken me to Ext.P1 mahazar, wherein it was mentioned that the accused and PW1 had affixed their signatures on the bottle containing the sample and MO1 can. ``` Crl.A.No.490 of 2011 ``` ``` 5 ``` The entry regarding the affixture of signature by PW1 and the accused was admittedly incorporated as an addition in Ext.P1 seizure mahazar. PW1 also admitted the same while giving evidence. It has been brought out in evidence that the signature stated to have been affixed by the accused was absent in MO1 can. The prosecution relied on the signature of the accused on MO1 to establish the presence of the accused as alleged by the prosecution. None of the independent witnesses supported the prosecution version that the accused was found in possession of the contraband substance at the place of occurrence. So the oral evidence of PWs 1 and 2 alone is there to establish the identity of the accused. 12. Ext.P1, mahazar does not contain any features sufficient to identify the person who was allegedly carrying the contraband. Going by the evidence, PWs 1 and 2 had only a fleeing glimpse of the person who was carrying the contraband substance. 13. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony ``` Crl.A.No.490 of 2011 ``` ``` 6 ``` regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367].** Therefore, the resultant conclusion is that the prosecution failed to establish the identity of the accused. So on this ground alone the prosecution must fail. 14. Ext.P4 is the copy of the forwarding note/requisition for sending the sample to the laboratory. In Ext.P4, the space meant for affixing the name of the person with whom the sample was forwarded is left vacant. The learned Magistrate who counter signed the forwarding note has not put the date on which he made the initials. Ext.P9, the Certificate of Chemical Analysis shows that the sample was delivered to the laboratory through Sri. S.Jayraj, an Excise Guard on 23.11.2007. Ext.P9 further shows that the sample was forwarded to the Court on 22.11.2007. Ext.P3 Property List shows that the sample was received by the Junior Superintendent of the Court on 04.09.2007. The sample remained in the custody of the Property Clerk of the Court. The prosecution has not examined those officials to establish the tamper proof desptach of the sample ``` Crl.A.No.490 of 2011 ``` ``` 7 ``` to the laboratory. When the sample changed several hands during its transit from the Court to the laboratory, the prosecution ought to have examined those officials to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].** 15. The prosecution has also not explained the custody of the sample from 22.11.2007, the date on which the sample was forwarded, to 23.11.2007, the date on which it reached the laboratory. The examination of the Excise Guard who delivered the sample in the laboratory was highly required to explain the custody of the sample during this interval. 16. The delay in the analysis of the sample also remained unexplained. Though the sample reached the laboratory on 23.11.2007, it was subjected to analysis only on 06.09.2009. While dealing with the similar fact situation this Court in **Krishnadas v.** ## **State of Kerala (2019 KHC 191) this Court held thus:** > “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay ``` Crl.A.No.490 of 2011 ``` ``` 8 ``` of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 17. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 18. In the instant case, the prosecution failed to establish the identity of the person who was allegedly carrying the contraband at the scene of occurrence and further that the contraband substance seized from the place of occurrence eventually reached the hands of the Chemical Examiner. 19. The prosecution therefore failed to establish the link connecting the accused with the contraband seized. Therefore, the conviction and sentence passed against the accused cannot be sustained. The accused is found not guilty of the offence alleged. She is acquitted of the offence. She is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK