Paradiyil Vakkachan @ Varkey v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 CRL.A NO. 2249 OF 2008** **AGAINST THE JUDGMENT DATED 18.09.2008 IN SC.NO.945/2006 OF THE ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY, KANNUR DISTRICT** ## **APPELLANT/ACCUSED:** **PARADIYIL VAKKACHAN @ VARKEY AGED 61 YEARS S/O. JOSEPH, COOLIE, NELLIYODIMALA, KOTTIYOOR AMSOM DESOM, THALASSERY TALUK.** **BY ADV SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV.SMT.MAYA M.N., PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2249 OF 2008** 2 ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.2249 of 2008** **------------------------------------** Dated this the 2[nd] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 18.09.2008, passed by the learned Additional Sessions Judge, (Adhoc-II), Thalassery, in SC.No.945/2006. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 58 of the Kerala Abkari Act. 3. The prosecution case is that on 04.04.2005 at about 02.00 p.m., the accused was found in possession of 2 liters of illicit arrack at Neendunokki in Kottiyoor Amsom, Kannur District. 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 **CRL.A NO. 2249 OF 2008** 3 the Judicial First Class Magistrate Court, Kuthuparamba. 5. The case was committed to the Sessions Court, Thalassery, 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 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. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P8. 7. 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 arguments addressed from both sides, found that the accused is **CRL.A NO. 2249 OF 2008** 4 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 term of six months and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Maya M.N., the learned Public Prosecutor appearing for the respondent. 9. The counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. **CRL.A NO. 2249 OF 2008** 5 ## **THE POINT** 12. PW1, the Preventive Officer, Excise Range Office, Pervaoor, detected the offence. PW1 was on patrol duty on 04.04.2005 within the suburbs of Kottiyoor Village. When the Excise team led by PW1 reached Neendunokki, the accused was found carrying a black plastic can. PW1 prevented the accused from moving away and inspected the plastic can found in possession of the accused. He ascertained that the plastic can found in the possession of the accused contained 2 liters of illicit attack. PW1 seized the contraband substance found in the possession of the accused, as per Ext.P1 seizure mahazar. The accused was arrested from the spot. 13. PW2, the Excise Preventive Officer, who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. PW3, an independent witness, did not support the prosecution case. PW4, Excise Inspector, Peravoor, conducted investigation and submitted final report before the Court **CRL.A NO. 2249 OF 2008** 6 against the accused. 14. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. 15. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions: - (a) Pws.1 and 2, the detecting officer and the Excise official who had accompanied him, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P1 seizure mahazar, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (c) The prosecution failed to establish that the **CRL.A NO. 2249 OF 2008** 7 sample was sent to the Chemical Examiner's laboratory in a tamper proof condition. 16. The oral evidence of PWs.1 and 2 is silent regarding the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 17. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 18. In the instant case, the detecting officer has not given evidence as to what seal he had affixed on the bottle containing the sample. The evidence on this aspect by the detecting officer is highly required to enable the Court to satisfy the genuineness of the sample produced **CRL.A NO. 2249 OF 2008** 8 in the court. 19. Learned counsel for the accused/appellant further contended that the non examination of the property clerk of the court and the excise official who delivered the sample to the Chemical Examiner's laboratory is fatal to the prosecution case. 20. There is absolutely no evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. Ext.P6, copy of the forwarding note, does not contain the signature or initial of the learned Magistrate. 21. Ext.P7, the certificate of chemical analysis, would show that a sealed 375 ml bottle, containing 300 ml of a colourless liquid, was received in the Chemical Examiner's laboratory on 31.05.2005. The sample was received in the laboratory as per a covering letter No. R.P.No.110/05 of the Judicial First Class Magistrate Court, Kuthuparamba. The covering letter of the learned Magistrate is undated as is evident from Ext.P7, **CRL.A NO. 2249 OF 2008** 9 certificate of chemical analysis. 22. This Court is in the dark as to when the sample was forwarded to the Chemical Examiner's laboratory. It is admitted case of the prosecution that the sample remained in the custody of the property clerk of the court and Sri.Pathmarajan, the Excise Official who delivered the sample to the Chemical Examiner's laboratory. Ext.P5, property list, would show that sample was received in the court on 05.04.2005. The sample reached the Chemical Examiner's laboratory only on 31.05.2005. 23. In the absence of any evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory from the court, the prosecution ought to have examined either the property clerk of the court or the excise official who received the sample from the court and delivered the same to the laboratory. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or **CRL.A NO. 2249 OF 2008** 10 tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303], **Kumaran v. State of Kerala** [2016 (4) KLT 718]). 24. In view of the fact that there is no evidence to convince the court that the sample was forwarded to the laboratory in tamper proof condition, no evidentiary value can be given to Ext.P7 chemical analysis report. 25. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 26. 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 **CRL.A NO. 2249 OF 2008** 11 accused. 27. 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 benefit of doubt arising from the absence of link evidence as discussed above. 28. The trial court passed the impugned judgment of conviction and sentence overlooking these vital aspects of the matter. The judgment of conviction and sentence is liable to be set aside. The appellant/accused is therefore not guilty of the offence punishable under Section 58 of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS