P.K. Thankappan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN FRIDAY, THE 10[TH] DAY OF SEPTEMBER 2021/19TH BHADRA, 1943 CRL.A NO. 433 OF 2014** **AGAINST THE JUDGMENT IN SC 194/2009 OF ADDITIONAL SESSIONS JUDGE - II, KALPETTA** ## **APPELLANT/ACCUSED** P.K. THANKAPPAN AGED 39 YEARS S/O. KINDILAYI, PULIKATTUKUNNU COLONY, KOTTUKULAM, KUPPADITHARA VILLAGE, VYTHIRI TALUK, WAYANAD. BY ADV SRI.A.C.DEVY ## **RESPONDENT/STATE:** THE STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. SRI. ARAVIND MATHEW, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.Appeal No.433 of 2014 _**"C.R"**_ ## _**A.BADHARUDEEN, J**_ **.** **-----------------------------------------------------** Crl.Appeal No.433 of 2014 ---------------------------------------------------- _Dated this the 10[th] day of September, 2021_ ## _**J U D G M E N T**_ Judgment in S.C.No.194/2009 on the file of the Additional Sessions Judge II, Kalpetta dated 22.04.2014 is under challenge in this appeal at the instance of the sole accused where State of Kerala is the respondent. 2. Briefly spelt, the prosecution case is that on 10.09.2008 at about 10.15 a.m the accused was found in possession of 3 litre of arrack while transporting the same in a can having capacity of 5 litre on the macadam road near Millumukku junction. The accused was arrested and the contraband was taken into custody. Thereafter alleging commission of offence under Section 8(1) read with 8(2) of the Abkari Act was registered and on investigation, final report filed before the Chief Judicial Magistrate, Kalpetta. Crl.Appeal No.433 of 2014 3 Thereafter, the case was committed to the Court of Sessions and then made over to the Additional Sessions Court II, Kalpetta for trial and disposal. 3. The trial Judge after framing charge, tried the matter. PW1 to PW6 examined and Exts.P1 to P6 and MO1 were marked on the side of the prosecution. 4. Thereafter, the accused was examined under Section 313(1)(b) of Cr.P.C and the incriminating circumstances in the evidence were read over and explained to the accused. His explanation was recorded and opportunity was given to the accused to adduce defence evidence. But no defence evidence adduced. 5. After hearing both sides and appreciating the evidence, the learned Additional Sessions Judge convicted and sentenced the accused as under: _The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1,00,000/- (Rupees One lakh only) under Section 8(2) of the Abkari Act, in default of payment of fine, accused shall undergo rigorous imprisonment for six months_ 4 Crl.Appeal No.433 of 2014 _more. The accused is entitled to get set off under Section 428 of Cr.P.C._ 6. While challenging the veracity of the judgment impugned, a serious anomaly in the matter of the sample collected is pointed by the learned counsel for the appellant/accused. It is submitted that as per the evidence of PW3, the Detecting Officer, the specimen sample collected was 200 ml of contraband and as per Ext.P8 chemical analysis report, it is stated that 300 ml of colourless liquid reached the laboratory. According to the learned counsel, this is a serious anomaly to disbelieve the prosecution case and the same would go to the root of the matter. 7. The learned Public Prosecutor attempted to justify this anomaly based on the explanation given by PW3 to the effect that the sample collected was approximate quantity and at the time of recovery no measuring vessel was available to measure the exact quantity. Therefore, this anomaly is of least significance, is the submission of the learned Public Prosecutor. 8. In view of the rival submissions, I have perused the 5 Crl.Appeal No.433 of 2014 evidence of PW3. PW3 given evidence that on 10.09.2008, he found the accused possessing the contraband. Thereafter, he was arrested as per Ext.P2 arrest memo. His evidence further is that 200 ml of arrack was collected as sample and after sealing and labelling, the same was forwarded to court for chemical examination. Apart from that, in Ext.P6 recovery mahazar it is specifically stated that approximately 200 ml of arrack was collected as sample. Thus the evidence given by PW3 is that the sample collected would come to 200 ml. However, Ext.P8 chemical analysis report pertaining to the sample produced for chemical examination would go to show that the sample reached at the hands of the chemical examiner was 300 ml instead of 200 ml. In fact, if the sample reached at the hands of the chemical examiner exceeds what has been collected by the detecting officer at the time of detection, there is every reason to doubt the genuineness of the sample collection and recovery of contraband. Similarly, in such situation it is difficult to lay down that the Crl.Appeal No.433 of 2014 6 sample collected is the one reached at the hands of the Chemical Examiner. Therefore, this is a serious anomaly to doubt the prosecution case and such a serious doubt shall go in favour of the accused. 9. Apart from that, PW1 and PW2, the independent witnesses, cited by the prosecution to prove the detection and recovery, turned hostile to the prosecution and they did not support the prosecution in any manner. 10. It is true that the hostility of independent witnesses is not a ground to record acquittal in a case where the evidence of official witnesses is trustworthy and convincing. However, the prosecution is duty bound to prove the entire allegation levelled against the accused without reasonable doubts to record conviction and any flaw in the prosecution evidence including the serious one as discussed above is a reason to disbelieve the prosecution case. 11. It is settled by catena of decisions of this Court that the Detecting Officer, who had drawn the sample, had to give evidence 7 Crl.Appeal No.433 of 2014 as to the nature of the seal affixed on the bottle containing the sample, nature of the seal used to affix on the seizure mahazar, etc. Further the Detecting Officer should also produce the specimen of the seal before the court. Moreover, the specimen of the seal shall be provided under seizure mahazar in the forwarding note so as to ensure tamper free collection and production of sample before the court for getting chemical analysis report. That apart, for ensuring that sample of contraband allegedly seized by the Investigating Officer from the accused had reached the Chemical Examiner for analysis, it has to be proved that seal affixed on the sample also is provided to the Chemical Examiner for comparison. Decisions reported in [2015 (1) KHC 822], _**Krishnan H. v. State**_ ; [2019 KHC 191], _**Krishnadas v. State of Kerala** ;_ [2016 KHC 175], _**Achuthan v. State of Kerala**_ and [2020 KHC 5296], _**Bhaskaran K. v. State of Kerala & anr.**_ are relevant on this point. 12. Coming back to the mandates discussed above, it is argued by the learned counsel for the appellant that no specimen Crl.Appeal No.433 of 2014 8 seal affixed on the forwarding note marked as Ext.P5. So also there is no mention in the chemical analysis report marked as Ext.P8 to prove that specimen seal was provided to the Chemical Examiner. It is argued further that in this case the Investigating Officer failed to give evidence as to the nature of seal affixed on the bottle containing the sample and other details in a convincing manner. On perusal of the evidence, the submission is having force. Though the learned Public Prosecutor was asked to point out evidence in this regard, he also failed in this endeavour. 13. In this connection it has to be observed that in a case of this nature the prosecution could succeed only if it is proved that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner without possibility of tampering. Decisions reported in [1980 KHC 873, _**State of Rajasthan v. Daulat Ram**_ ; 1993(2) KLT 550 (SC), _**Valsala v. State of Kerala**_ ; 2007 KHC 3404, _**Sasidharan v. State of Kerala**_ are given emphasis. 9 Crl.Appeal No.433 of 2014 14. While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sample of the alleged contraband, the following measures to be followed: 15. **Steps to be followed by the officer collecting the** : **sample** (i) Collection of sample from the alleged contraband by the Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner; (ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note; (iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained; 10 Crl.Appeal No.433 of 2014 (iv) Specimen seal affixed on the sample should be produced before the court along with the contraband for comparison; (v) The said officer shall depose about compliance of the above before the court while giving evidence. 16. **Steps to be followed by the Thondy Clerk who is authorised to receive the thondy:** (i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court; (ii) While forwarding the sample to the laboratory, the Thondy Clerk shall ensure that specimen sample seal is affixed on the forwarding note; (iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical 11 Crl.Appeal No.433 of 2014 Examiner; (iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample; (v) Thondy Clerk must be examined to prove compliance of the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also to prove compliance of item No.(i) to (iv) steps stated hereinabove. ## 17. : **Measures to be ensured by the Chemical Examiner** (i) Chemical Examiner shall ensure production of specimen seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit; (ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical 12 Crl.Appeal No.433 of 2014 Examiner as provided under Section 293 Cr.P.C. 18. Unless and until the above safety measures are not ensured, it cannot be said that the sample of the contraband subjected to chemical examination by the Chemical Examiner is one collected from the possession of the accused. Any lacuna in this regard is a reason to disbelieve the recovery and the chemical analysis report. Consequently, the entire prosecution case would fail. Thus the evidence available is not fully free from doubts for want of details regarding collection of sample, affixing of specimen seal etc., to rule out tamper free collection of the sample of the contraband alleged to be recovered from the accused apart from the anomaly in the matter of quantity of sample collected as discussed above. 19. It is true that herein also chemical analysis report with a positive finding showing presence of prohibited liquor was produced. In the decision reported in _**AIR 2019 SC 3569, Vijai Pande v. State of U.P,**_ the Apex Court held that mere production of Crl.Appeal No.433 of 2014 13 a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be corelated. 20. On evaluation of the evidence available, the mandates necessary to ensure tamper proof collection of sample of the alleged contraband and its examination without tampering as discussed in detail, failed to be established by the prosecution without reasonable doubts. Therefore, the accused/appellant herein is entitled to benefit of doubt and as such the conviction and sentence imposed by the trial court in the above circumstances cannot sustain. In view of the matter, the same are liable to be set aside. 21. In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the accused are set aside. Consequently, the appellant/ accused is acquitted for the offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond executed by the appellant/accused shall stand cancelled. He 14 Crl.Appeal No.433 of 2014 is set at liberty forthwith. Amount, if any, being part of the fine deposited by the accused/appellant by order of this Court shall be refunded to him in accordance with the procedure established by law. _Sd/-_ _**(A. BADHARUDEEN, JUDGE)**_ _rtr/_