Nirmala and Vasantha v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943** ## **CRL.A NO. 1072 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 220/2004 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC)-IV, TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANTS/ACCUSED A1 AND A2:** 1 NIRMALA, D/O. ROZZILY, MIDANOORKONAM, KIZHAKKUKARA, B.P.XI/223, NEAR NELLIVILA, SCHOOL, ANTHIYOOR DESOM, KOTTUKAL VILLAGE,, NEYYATTINKARA. 2 VASANTHA, D/O.BHAI, MIDANOORKONAM, KIZHAKKUKARA, B.P.XI/223, NEAR NELLIVILA SCHOOL, ANTHIYOOR DESOM, KOTTUKAL VILLAGE, NEYYATTINKARA. BY ADV SRI.THIRUMALA P.K.MANI ## **RESPONDENT/STATE:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1072 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.1072 of 2007** --------------------------------------Dated this the 19[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 07-06-2007, passed by the learned Additional Sessions Judge (Adhoc-IV), Thiruvananthapuram in S.C No.220/2004, the two accused have preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 8(2) of the Abkari Act. 3. The prosecution case is that on 28-12-2003, the accused were found engaged in sale of illicit arrack near their residence at Midannoorkonam, Thiruvananthapuram district. The offence was detected by the Additional Sub Inspector of Police, Balaramapuram Police Station. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-III Neyyanttinkara. The case was committed to the Crl.A No.1072 of 2007 3 Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court (Adhoc-IV), Thiruvananthapuram. On appearance of the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge levelled against them and therefore, they came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P9 and MOs 1 to 3. 6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused are guilty of offence under Section 8(2) of the Abkari Act and they were convicted thereunder. The accused Crl.A No.1072 of 2007 4 were sentenced to undergo rigorous imprisonment for a term of one year each and to pay a fine of Rs.1 Lakh each. 7. Heard Sri.Thirumala P.K.Mani, learned counsel appearing for the appellants/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused, eventually reached the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellants are sustainable or not. ## **The Point** 11. PW4, the Additional Sub Inspector of Police, Balaramapuram Police Station was on patrol duty on 28-12-2003. When the police team led by PW4 reached Nellivila around 5.30 p.m, Crl.A No.1072 of 2007 5 on getting reliable information that the accused were engaged in the sale of illicit arrack at Midannoorkonam they proceeded to the place of occurrence and found the accused in possession of illicit arrack. The accused No.2 was found selling illicit arrack and the other accused was found collecting money from the customers. PW4 searched the residence of the accused and seized 3 bottles containing illicit arrack. PW4 also seized 2 currency notes of the denomination of Rs.10 and a glass tumbler from the possession of the accused. PW4 collected sample from the contraband substance in 3 bottles, each containing 180 ml. 12. PWs 3 and 5, the police constables who had accompanied PW4, supported the prosecution case. 13. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 14. PW6, the thondi clerk of the Judicial First Class Magistrate Court-III, Neyyattinkara has given evidence that he had received the articles including the bottles containing the sample on 29-12-2003 and forwarded the sample to the Chemical Examiner’s laboratory. Crl.A No.1072 of 2007 6 15. The learned counsel for the appellants/accused submitted that the prosecution failed to establish that the contraband substance allegedly drawn from the place of occurrence, eventually reached the Chemical Examiner’s laboratory. 16. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: - (i) PW4, the detecting officer and the other police officials who had accompanied him (PWs 3 and 5), have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. - (ii) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used. - (iii) The specimen impression of the seal has not been produced before the court and forwarded to the Chemical Examiner for verification. 17. PW4, the detecting officer, and the other official witnesses, who had accompanied him in the search and seizure have not given Crl.A No.1072 of 2007 7 evidence as to the nature and description of the seal affixed on the bottles containing the sample. Ext.P1, seizure mahazar, is also silent regarding the specimen impression of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence that the specimen impression of the seal had been produced before the court. PW6, the thondi clerk of the Judicial Magistrate of First Class-III, Neyyanttinkara, has given evidence that at the time of production of the articles before the court the specimen impression was also produced. But the specimen impression of the seal has not been marked during the trial and no evidence is available before the court to see that the specimen impression of the seal was produced before the court. Exhibit P7, the copy of the forwarding note, does not contain specimen impression of the seal as pleaded by PW6. What is affixed on the space for the specimen seal in Ext.P7 is not legible. 18. The detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottles containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the 8 Crl.A No.1072 of 2007 court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note, so as to enable the court to satisfy the genuineness of the sample produced in the court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Krishnadas v. State of Kerala**_ [2019 KHC 191], _**Achuthan v. State of Kerala**_ [ILR 2016 (2) Ker 145]}. 19. When the specimen of the seal affixed on the bottles 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 bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded 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 Chemical Examiner without any tampering (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 20. In the instant case, there is nothing to show that the specimen seal was provided to the Chemical Examiner for 9 Crl.A No.1072 of 2007 verification. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. 21. The resultant conclusion is that no evidentiary value can be given to Ext.P8 chemical analysis report. 22. 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 itself and that the sample seized and that tested have to be co-related. 23. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged 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]}. 24. In the instant case, the prosecution was unable to establish Crl.A No.1072 of 2007 10 the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 25. 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 appellants/accused are therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. They are acquitted of the charge. They are set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS