Ouseph v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** **CRL.A NO. 2127 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 520/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THRISSUR** ## **APPELLANT/ACCUSED:** OUSEPH, S/O.CHAKKUNNY, MEKKATTUKULAM HOUSE, KODASSERI VILLAGE, CHANDANAKKUNNU, THRISSUR DISTRICT. BY ADV SRI.A.C.DEVY ## **RESPONDENT/S:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, KOCHI-31. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2127 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2127 of 2008** --------------------------------------Dated this the 6[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 19-08-2008, passed by the learned Additional Sessions Judge (Adhoc-I), Thrissur in S.C No.520/2007, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 58 of the Abkari Act. 3. The prosecution case is that on 28-11-2004 at 6.00 a.m., the accused was found in possession of 10 litres of illicit arrack at Chandakunnu, Kodassery Village in Thrissur district. The accused was arrested by the Preventive Officer, Excise Circle office, Irinjalakkuda. The Excise officials also seized the contraband substance from the possession of the accused. 4. After completion of investigation, final report was submitted against the accused by the Excise Inspector, Chalakkudy Range before the Judicial First Class Magistrate Court, Chalakkudy. 3 Crl.A No.2127 of 2008 The case was committed to the Sessions Court, Thrissur from where it was made over to the trial court. On appearance of the accused charge was framed against him for the offence punishable under Section 58 of the Kerala Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the Additional Sessions Court for the aforesaid offence. 5. The prosecution examined PW1 to PW6 and proved Exts.P1 to P7 and MO1. 6. 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 is 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 trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1 Lakh and in default to undergo simple imprisonment for a period of 2 months. 4 Crl.A No.2127 of 2008 7. Heard Sri.A.C.Devy, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: - (i) There is inordinate delay in producing the properties, allegedly recovered from the scene of occurrence, before the court. - (ii) The prosecution miserably failed to establish that the contraband substance allegedly recovered from the possession of the accused, finally reached the hands of the public analyst. 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/appellant are sustainable or not. ## **The Point** 11. PW6, the Excise Preventive Officer, Excise Circle Office, Irinjalakkuda, on 28-11-2004 detected the offence. He gave 5 Crl.A No.2127 of 2008 evidence that the accused was found carrying a can containing 10 litres of illicit arrack while passing through ChalakkudyChattikkulam road and that he was arrested. PW6 seized the contraband substance from his possession. PW6 collected 300 ml of arrack, from the can seized from the possession of the accused, in a bottle as sample and sealed the same. He also prepared Ext.P2 seizure mahazar. 12. PW2, the Excise guard who had accompanied PW6, gave evidence in support of the version of PW6. PW3 and PW4, the independent witnesses, did not support the prosecution case. PW5, the Excise Inspector, Chalakkudy Range, conducted investigation. 13. Exhibit P1 is the crime and occurrence report prepared by PW1. Exhibit P5 is the scene mahazar. The chemical analysis report was marked as Ext.P7. 14. The learned counsel for the appellant contended that the delay in production of the properties before the court is fatal to the prosecution. It is submitted that the delay in production of the properties has not been satisfactorily explained. The offence was detected on 28-11-2004. PW1, the Excise Inspector, Chalakkudy Range who was entrusted with the properties by PW6, has given Crl.A No.2127 of 2008 6 evidence that the properties were produced before the court on 01-12-2004. There is no satisfactory explanation for this delay. It is also pertinent to note that no material has been placed before the court to show that the properties were produced before the court on 01-12-2004. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: - _“8. We, therefore, answer the reference as follows:_ 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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) 15. In _**Ravi's case**_ (supra) the Division Bench held that production of the property before the court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. The trial court recorded a finding that the properties were produced before the court on 01-12-2004. PW1, the Excise Inspector, Chalakkudy Range with whom the properties were entrusted by the detecting officer, deposed that on the date of occurrence itself the 7 Crl.A No.2127 of 2008 properties were produced before the court. I have carefully gone through the materials placed before the court. No evidence is available to show the date on which the properties were produced before the court. It is pertinent to note that no list of property has been marked before the court. So this Court is in the dark as to the date on which the properties were produced. I am unable to accept the finding of the learned Additional Sessions Judge that the properties were produced before the court on 01-12-2004. I have no hesitation to hold that the prosecution failed to establish the date on which the properties were produced before the court. Even if it is assumed that the properties were produced before the court on 01-12-2004, there is no explanation on the part of the official witnesses as to the delay caused in production of properties. Unexplained delay in the production of properties would lead to the conclusion that tempering with the samples could not be ruled out. 16. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused, ultimately reached the hands of the public analyst. The learned counsel relied on the following circumstances to substantiate his contentions. Crl.A No.2127 of 2008 8 - (a) The prosecution failed to establish the date on which the sample was produced before the court. - (b) No forwarding note has been produced before the court. - (c) There is no evidence to show that the specimen seal was produced before the court and the same was provided to the Chemical Examiner's laboratory for verification. - (d) The prosecution failed to give evidence as to with whom the sample was sent to the Chemical Examiner's laboratory. - (e) There is inordinate delay in the analysis of sample at the Chemical Examiner's laboratory, which remains unexplained. 17. I have already held above that no satisfactory evidence was adduced from the part of the prosecution to establish the date on which the sample was produced before the court. 18. Neither the copy of the forwarding note nor the specimen seal has been marked in this case. The relevance of the copy of the forwarding note is to establish the nature of the seal used for sealing Crl.A No.2127 of 2008 9 the bottle containing the sample and to ascertain the person with whom the sample was sent for chemical examination. Evidence on these two aspects is important to establish tamper proof despatch of the sample to the laboratory. In _**Ramachandran v. State of Kerala**_ [2021 (1) KLT 793], while dealing with a similar fact situation, this Court held thus: _“9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper – proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper – proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”_ 19. In the given case the prosecution failed to establish that forwarding note containing the specimen seal was prepared and produced before the court, the benefit of which must go to the accused. 20. 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 Crl.A No.2127 of 2008 10 ## 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 PW.1 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 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.”_ 21. 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 Ext.P7 certificate of chemical analysis. 22. Exhibit P7 shows that the sample bottle was received in the laboratory on 09-12-2004. But the same was analysed only on 29-03-2006. This delay in examination of the sample has not been explained. On the delay in analysis of the sample this Court in Crl.A No.2127 of 2008 11 ## _**Krishnadas v. State of Kerala**_ [2019 KHC 191] 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 of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”_ The delay of more than one year for conducting the analysis of the sample remains unexplained creating suspicion regarding the credibility of the result of examination in the mind of the court. 23. This Court is in the dark as to the date on which the sample was produced before the court and the date on which the same was sent to the Chemical Examiner's laboratory. There is no evidence as to who received the sample from the court for delivering the same to the laboratory. The lack of evidence as to whether a specimen seal was, at any time, produced before the court with intent to be provided to the Chemical Examiner is also a serious infirmity. 24. In order to establish these aspects the prosecution ought to have examined the person who received the sample from the 12 Crl.A No.2127 of 2008 court and the person who delivered the same to the laboratory. Absence of any link evidence on these aspects goes against the prosecution. 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. 25. The prosecution can succeed only if it is established that the sample, which changed several hands, had ultimately reached the hands of the Chemical Examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquid allegedly seized from the accused. (Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]. 26. This Court comes to the conclusion that there is absolutely no link evidence to establish that the sample drawn from the can allegedly possessed by the accused reached the hands of the Chemical Analyst in tamper-proof condition. 27. Resultantly, the conviction recorded and the sentence passed by the court below overlooking the above vital aspects 13 Crl.A No.2127 of 2008 cannot be sustained. In the result, the accused is acquitted of the charge under Sec.58 of the Abkari Act. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS