NARAYANAN S/O NALLAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 29[TH] DAY OF JUNE 2021 / 8TH ASHADHA, 1943** **CRL.A NO. 1266 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.52/2005 OF ADDITIONAL SESSIONS COURT FAST TRACK COURT NO.III(ADHOC), MANJERI APPELLANT/ACCUSED:** **NARAYANAN S/O.NALLAN, PULIKKAL, MALAPPURAM DISTRICT.** **BY ADV SRI.BABU S. NAIR** ## **RESPONDENTS** : **THE STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR, MALAPPURAM EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1266/2006 ## _**JUDGMENT**_ _Dated this the 29[th] day of June, 2021_ Aggrieved by the judgment dated 18.5.2006, passed by the Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri in Sessions Case No.52 of 2005, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 24.7.2003, at about 5.30 P.M., while the Excise team led by the Excise Preventive Officer, Excise Range Office, Malappuram was on patrol duty through the Thanniyangattu-Angadipparamba road, at Pallikkal the accused was found in possession of two litres of illicit arrack. They arrested the accused and seized two bottles of illicit arrack. After completion of investigation, final report was submitted against the accused by the Excise Inspector, Excise Range Office, Malappuram for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Malappuram. The case was committed to the Sessions Court, Manjeri from where it was made over to the Additional Sessions Court, Fast Track Court No.III (Adhoc), Manjeri for trial and disposal. On appearance of the accused, charge was 3 Crl.A.No.1266/2006 framed against the accused for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 3. The prosecution examined PWs 1 to 6 and proved Exhibits P1 to P10 and MOs 1 to 3. 4. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, that he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, convicted the accused for the offence under Section 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a term of six months and to pay fine of Rs.1,00,000/-. 5. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence. - _i. The prosecution failed to establish that the contraband article allegedly seized from the possession of the accused eventually reached the hands of the Analyst._ 4 Crl.A.No.1266/2006 - _ii. The prosecution failed to establish the link connecting the accused with the contraband substance._ 6. The learned Public Prosecutor, per contra, submitted that the prosecution successfully established that the accused was in possession of the contraband article at the relevant time. 7. PW1, the Preventive Officer, Excise Range Office, Malappuram detected the offence. He has given evidence that the accused was found in possession of the contraband substance on 24.7.2003 at the place of occurrence. PW2, the Excise Guard who had accompanied PW1 at the time of detection, supported the prosecution case. PWs 3 and 4, the independent witnesses, did not support the prosecution case. Exhibits P1 and P3 are the arrest memo and arrest notice respectively. Exhibit P2 is the seizure mahazar prepared by PW1. PW1 has given evidence that he had collected sample from the contraband seized from the possession of the accused in a 375 ml. bottle at the scene of occurrence and sealed the same. 8. The seizure mahazar (Exhibit P2), the contemporaneous document prepared by the detecting officer, is silent regarding the nature of the seal affixed on the bottle containing the sample. 5 Crl.A.No.1266/2006 9. The specimen seal provided in Exhibit P6 copy of the forwarding note is not legible. PW1, the detecting officer, has not given evidence regarding the nature of the seal affixed on the bottle containing the sample. 10. In _**Bhaskaran v. State of Kerala and another** [2020 KHC 5296],_ this Court held that the nature of the seal used shall be mentioned in the seizure mahazar and that the specimen seal shall be produced before the court. In _**Krishnadas v. State of Kerala** [2019 KHC 191]_ , this Court held that the detecting officer is expected to tell the court that he had affixed his personal seal on the sample and also tell the court what seal it was. 11. It is not in dispute that Sri.M.Vijayan, an Excise Guard, received the bottle containing the sample and the residue of the contraband from the possession of PW5 and produced the same before the court and it was Sri.Vijayan who received the bottle containing the sample from the Magistrate's Court and delivered to the Chemical Examiner's laboratory. This Court is in the dark as to the date on which the sample was handedover to the Excise Guard for delivering the same to the laboratory. The thondi section clerk of the court and Sri.Vijayan, handled the sample during different 6 Crl.A.No.1266/2006 periods. 12. It is well settled that in a case of this nature where the sample changed several hands before it reached the hands of the Chemical Examiner, examination of those witnesses, who handled the sample, was necessary to prove that while in their custody the seals were not tampered with. The inevitable effect of the omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period, a fact which had to be proved affirmatively by the prosecution [Vide : _**State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)]_ . 13. There is absolutely no evidence to convince the court that specimen impression of the seal has been provided to the Chemical Examiner. None of the prosecution witnesses have given evidence on those aspects. In _**Rajamma v. State of Kerala** [2014 (1) KLT 506]_ , while dealing with the question of lack of evidence regarding the production of specimen seal before the court to be provided to the Chemical Examiner, this Court held as follows : _“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed_ 7 Crl.A.No.1266/2006 _on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant.”_ 14. There is also no evidence as to who received the sample bottle from the court and on which date. The prosecution failed to establish these vital aspects, which are imperative to form a link evidence to show that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused reached the hands of the Analyst. In the absence of this link evidence, no value can be given to Exhibit P7 certificate of chemical analysis. 15. Relying on _**State of Rajasthan v. Daulat Ram** (AIR 1980 Supreme Court 1314)_ , this Court in _**Sathi v. State of Kerala** [2007(1) KHC 778]_ held that the prosecution can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the possession of the accused. 16. In the instant case, the prosecution failed to establish that the very same sample allegedly seized from the possession of the 8 Crl.A.No.1266/2006 accused ultimately reached the hands of the Analyst. Resultantly, the judgment of conviction and sentence is not sustainable. In the result, the appeal is allowed. The accused is acquitted. He is set at liberty. The amount, if any deposited, on the basis of the interim orders of this Court by the accused shall be released to him as per law. Sd/- **K.BABU, JUDGE** csl