Poulose v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 2[ND] DAY OF FEBRUARY 2024 / 13TH MAGHA, 1945 CRL.A NO. 967 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT SC 7/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/S:`** ``` POULOSE AGED 56 YEARS S/O.VARGHESE, EDAYATHUKUDY HOUSE, KONMATTUKUNNU DESOM, CHEERAL, VILLAGE, SULTHAN BATHERY. BY ADV SRI.GEORGE VARGHESE KIZHAKKAMBALAM ``` ## **`RESPONDENT/S:`** - `1 STATE OF KERALA REP, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.` - `2 THE EXCISE INSPECTOR EXCISE RANGE OFFICE SULTHAN BATHERY. BY PUBLIC PROSECUTOR G SUDHEER` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl Appeal No.967 of 2008 ..2.. ## **K. BABU, J** ## **------------------------------------------------Crl Appeal No.967 of 2008** ## **------------------------------------------------Dated this the 2[nd] day of February, 2024** Aggrieved by the judgment dated 12.07.2007, passed by the Additional Sessions Court (Adhoc-II), Kalpetta, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. During the pendency of this appeal the appellant died. None of the near relatives of the appellant turned up. As the sentence challenged is a composite sentence of fine and imprisonment, the appeal shall not abate. In view of the ratio in _**Ramesan (Dead) through Lr. Girija A. v. State of Kerala**_ [(2020) 3 SCC 45] this Court is bound to decide the appeal on merits. 2. The prosecution case is that on 19.08.2004 at 12.00 p.m., the accused was found in possession of 3 Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** litres of arrack for sale at Ambattukunnu in Chooral Amsom in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offences punishable under Sections 8(2) the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MO1. 5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. He pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.V. Rajendran, Perumbavoor, the learned counsel appearing for the appellant/accused and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i)Ext.P1 seizure mahazar does not contain the nature and description of the sale stated Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** to have been affixed on the bottle containing the sample. (ii)The specimen of the sample was not produced before the Court at the time of of production of properties. (iii)The officials who handled the sample during the course of its transit to the laboratory were not examined. 9. The alleged seizure was effected on 19.08.2004. The Detecting Officer had drawn sample at the scene of occurrence. He prepared Ext.P1 seizure mahazar. In Ext.P1, the Detecting Officer has not narrated the nature and description of the seal. I have gone through Ext.P3. Ext.P3 does not contain the specimen of the seal used by the Detecting Officer. He has also not produced the specimen of the seal before the Court at the time of production of properties before the Court and has not given evidence as to the nature of the seal used. 10. In _**Bhaskaran v. State of Kerala**_ (2020 KHC Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. The sample was received in the Court by the Junior Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in the laboratory by an Excise Guard by name K.P.Rajan. 12. Junior Superintendent, the Property Clerk and Sri.K.P.Rajan, the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of these officials is fatal to the prosecution. 13. The resultant conclusion is that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** Laboratory. Non-examination of these officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in _**State of Rajastan v. Daulat Ram**_ [AIR 1980 SC 1314). 14. In the instant case the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P3 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. 15. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/saccused is therefore found not guilty of the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. In the result, Crl Appeal No.967 of 2008 **==> picture [20 x 9] intentionally omitted <==** - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offences alleged; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K.BABU, JUDGE** kkj