NHENAN AGED 1 YEARS S/O.VELIYAN v. STATE - EXCISE INSPECTOR, KALPETTA EXCISE RANGE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943 CRL.A NO. 153 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 274/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA, WAYANAD APPELLANT/ACCUSED:** **NHENAN AGED 1 YEARS S/O.VELIYAN, KOTTATHARA, KOLAVAYAL COLONY, VENNIYODE DESOM,, VYTHIRI TALUK, WAYANAD.** **BY ADVS. SRI.CELINE JOSEPH** ## **RESPONDENT/COMPLAINANT:** **STATE -EXCISE INSPECTOR KALPETTA EXCISE RANGE, REP. BY THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.153 of 2008 2 **K. BABU J.** **-----------------------------------Crl.A.No.153 of 2008 ------------------------------------** Dated this the 24[th] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 05.01.2008, passed by the Additional Sessions Court (Adhoc) II, Kalpetta, in SC.No.274/2005, 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 21.10.2003 at about 06.00 p.m., the accused was found in possession of 2 liters of illicit arrack at Venniyode. The Excise Inspector, Kalpetta Excise Range detected the crime. 3. After completion of the investigation, the final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Chief Judicial Magistrate, Kalpetta. The case was committed to the Sessions Crl.A.No.153 of 2008 3 Court, Kalpetta 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 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. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P7 and MO1. 5. 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 innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the accused was guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was Crl.A.No.153 of 2008 **==> picture [7 x 9] intentionally omitted <==** sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/under Section 8(2) of the Abkari Act. 6. Heard Smt. Celine Joseph, the learned counsel appearing for the appellant/accused and Sri. M.C.Ashi, the learned Public Prosecutor appearing for the State. 7. The learned counsel for the appellant/accused submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution has succeeded in establishing the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 10. PW1 was on patrol duty on the valai- Crl.A.No.153 of 2008 5 venniyode on 21.10.2003. When the Excise team led by PW1 reached near the bridge at Venniyode, the accused was found there, carrying a can. The Excise team inspected the can carried by the accused. They found that it contained 2 litres of illicit arrack. PW1 seized the contraband substance found in possession of the accused. He arrested the accused from the spot. PW1 prepared Exhibit.P2 seizure mahazar. Based on Exhibit.P2 seizure mahazar, PW1 prepared Ext.P3 Crime and occurrence report. 11. PW2, an Assistant Excise Inspector who had accompanied PW1, supported the prosecution case. PWs 3 and 4, the independent witnesses, did not support the prosecution. 12. The learned counsel for the appellant/accused contended that the inordinate delay in the production of the property including the sample before the Court has not been satisfactorily explained by the prosecution. The alleged seizure was effected on 21.10.2003. Exhibit.P4, the property list shows that the Crl.A.No.153 of 2008 6 properties including the sample were produced before the Court only on 28.10.2003. The detecting officer has not given any explanation for the delay in the production of the properties before the Court. 13. On the question of delay in the production of the properties, a Division Bench of this Court in **Ravi v. State of Kerala & another** [2011 (3) KHC 121] held thus: “1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 14. The Division Bench held that production of the property before the Court should take place without unnecessary delay and there should be explanation for the delay when there is delayed Crl.A.No.153 of 2008 7 production of the property. In the instant case there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 15. The learned counsel for the accused/appellant further contended that the prosecution failed to establish that the contraband substances, allegedly recovered from the place of occurrence, was eventually subjected to analysis in the Chemical Examiner's laboratory. 16. The learned counsel for the accused/appellant relied on the following circumstances to establish her contention: a) The detecting officer has not given evidence as to the nature and description of the seal used by him. b) Exhibit.P2 seizure mahazar is silent regarding the nature and description of the seal used by the detecting officer. Crl.A.No.153 of 2008 8 c) The delay in bringing the sample after receiving the same from the court to the laboratory has not been explained by the prosecution. 17. PW1, the detecting officer has not given evidence as to the specific nature and description of the seal affixed on the bottle containing the sample. Exhibit.P2 seizure mahazar is also silent regarding the nature of the seal used by the detecting officer at the scene of occurrence. 18. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held that the detecting officer, who drew the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample and the nature of the seal used shall be mentioned in the seizure mahazar. 19. The specimen of the seal used by the detecting officer at the place of occurrence has not been produced before the Court at the time of the production of the property before the court. Only Crl.A.No.153 of 2008 9 if the specimen impression of the seal is produced along with the sample, the Court concerned can ensure the genuineness of the sample produced before it. 20. Ext.P5, the copy of the forwarding note, is silent regarding the date on which it was prepared. The prosecution failed to adduce evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. The learned Magistrate who countersigned Ext.P5, failed to mention the date on which he put his initial thereon. Ext.P7 certificate of analysis shows that one sealed 375 ml bottle containing 200ml of colourless clear liquid alleged to be arrack was forwarded to the laboratory as per letter No. PR361/2003 dated 22.10.2003 of the Chief Judicial Magistrate, Kalpetta. Exhibit.P7 further shows that the sample reached the laboratory only on 31.10.2003. In the absence of any contra evidence, this Court has to infer that the sample was forwarded from the Court on 22.10.2003. Exhibit.P7 Crl.A.No.153 of 2008 10 shows that the sample was delivered to the laboratory by one Excise guard, Suresh Babu.C.G. only on 31.10.2003. The custody of the sample during the period from 22.10.2003 to 31.10.2003 remains unexplained. Sri. Suresh Babu.C.G has not been examined as a witness. 21. While dealing with a similar fact situation this Court in _**Viswanadhan v. State of Kerala**_ [2016 (3) KHC 38] held thus: _“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ ## 22. In the absence of any satisfactory Crl.A.No.153 of 2008 11 explanation for the delay in the production of the sample before the laboratory after the same was forwarded from the Court it cannot be concluded that the sample reached the laboratory in a tamper-proof condition. 23. Non examination of the Property Clerk of the Court or the Excise Guard concerned who received the sample from the Court and the Excise Guard who delivered the sample to the laboratory on 31.10.2003, is fatal to the prosecution. It was imperative on the part of the prosecution to examine these witnesses to rule out the possibility of tampering with the sample. The inevitable consequence of this omission is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory (See: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]). 24. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by Crl.A.No.153 of 2008 **==> picture [13 x 9] intentionally omitted <==** itself and that the sample seized and that tested have to be co-related. 25. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 26. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 27. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The Crl.A.No.153 of 2008 **==> picture [13 x 9] intentionally omitted <==** appellant/accused is, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. This Crl.Appeal is allowed as above. **SD/-** **K. BABU, JUDGE** rps/