Podiyan@Jinmi Podiyan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943** **CRL.A NO. 1528 OF 2006** **AGAINST THE JUDGMENT IN SC 398/2001 OF THE ADDITIONAL** **SESSIONS JUDGE (ABKARI), KOTTARAKKARA, KOLLAM APPELLANT/ACCUSED:** **PODIYAN@JINMI PODIYAN S/O. SANKARAN, MUKALUVIILA VEEDU, MYLODU, KULANJIYIL, ELAMADU MURI, ELAMADU VILLAGE, KOTTARAKKARA TALUK.** BY ADV SRI.D.JAYACHANDRAN ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** . **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1528 of 2006 2 **K.BABU, J. ===================== Crl.A.No.1528 of 2006** **=====================** Dated this the 7[th ] of July, 2021 **JUDGMENT** Aggrieved by the judgment dated 20.7.2006, passed by the Additional Sessions Judge (Abkari), Kottarakkara, in S.C.No.398/2001, the accused has 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 26.11.1999 at 5 pm., the accused was found in possession of 2 litres of illicit arrack in a jerry can having a capacity of 2½ litre at Ayoor in Kollam 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 the Judicial First Class Magistrate Court I, Punalur. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Abkari), Kottarakkara. On appearance Crl.A.No.1528 of 2006 3 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. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 7. Heard Sri.D.Jayachandran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. Crl.A.No.1528 of 2006 4 8. The learned counsel for the appellant contended that the prosecution failed to establish that the articles said to have been seized from the possession of the accused eventually reached the hands of Public Analyst at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. 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 11. PW4, The Preventive Officer, Excise Range Office, Anchal detected the offence. He gave evidence that on 26.11.1999 at 5 pm while he was on patrol duty along with other excise officials they found the accused carrying MO1 jerry can at Ayoor. PW4 deposed that on seeing the excise party, the accused attempted to turn back. But he was intercepted and questioned. PW4 further deposed that he ascertained that the jerry can possessed by the accused contained illicit arrack. PW4 arrested Crl.A.No.1528 of 2006 5 the accused from the place of occurrence and seized the contraband substance from his possession by way of Ext.P1 seizure mahazar. PW4 collected 300 ml of illicit arrack from the jerry can in a bottle having the capacity of 375 ml and sealed the same. PW4 entrusted the accused and the properties to PW3. PW3, the Excise Guard attached to the Excise Range Office, Anchal, gave evidence that he had produced the accused and the contraband articles before the court. PW2, the independent witness, did not support the prosecution. PW5, the Excise Inspector, Anchal, conducted investigation. 12. 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 Analyst for the following reasons: a) The detecting officer (PW4) and the Excise Preventive Officer (PW1) who had accompanied PW4, have not given evidence as to the nature and description of the seal affixed on the sample. b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, Crl.A.No.1528 of 2006 6 does not contain any narration as to the nature and description of the seal used. c) The copy of the forwarding note, which contains the specimen impression of the seal used, has not been produced before the court. 13. I have gone through the depositions of the witnesses and Ext.P1 mahazar. PW4, the detecting officer, and the other witness who had accompanied him, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, does not contain the specimen of the seal stated to have been affixed on the sample. The learned Sessions Judge in para 8 of the judgment stated that PW4 had given evidence to the effect that he had affixed the seal containing the impression 'KE' on the MOs. On a careful examination of the deposition of PW4, I find that PW4 has not given such a statement before the Court. He only stated in the cross examination that he had an office seal with the impression 'KE' and he specifically stated that he had not stated anything regarding the nature of the seal in Ext.P1 seizure mahazar. 14. In **Bhaskaran v. State of Kerala and another** Crl.A.No.1528 of 2006 7 **(2020 KHC 5296)** , while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus: “21. 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. The specimen of the seal shall be produced in the 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 (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle 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 sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied) ## 15. In **Krishnadas v. State of Kerala (2019 KHC** ## **191)** this Court held thus: Crl.A.No.1528 of 2006 8 “7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied) 16. The learned counsel further contended that there is nothing to show that the specimen impression of the seal was provided to the chemical examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample. 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. The copy of the forwarding note, which contains the specimen of the seal used and the name of the official with whom the sample bottle was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** while dealing with a case in which Crl.A.No.1528 of 2006 9 forwarding note was not produced and marked, 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.” ## 17. In **Rajamma v. State of Kerala (2014(1) KLT** ## **506)** , this Court held thus: “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 PW1 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”. 18. In view of the fact that there is no evidence to convince Crl.A.No.1528 of 2006 10 the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6 chemical analysis report. 19. 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. 20. 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].** 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. 21. 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 appellant/accused is therefore not guilty of the offence punishable Crl.A.No.1528 of 2006 11 under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The Crl.Appeal is allowed as above. **SD/-** **K. BABU JUDGE** ab