Prabhakaran s/o Ayyappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944** **CRL.A NO. 2474 OF 2008** **AGAINST THE JUDGMENT OF CONVICTION AND SENTENCE IN SC 379/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA DATED 30.09.2008 APPELLANT/ACCUSED:** **PRABHAKARAN S/O.AYYAPPAN, NENMENI SULTHAN BATHERY.** **BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **REKHA – GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2474 of 2008 2 ## **K.BABU, J.** ------------------------------------------Crl.A No. 2474 of 2008 --------------------------------------------Dated this the 8[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 30.09.2008, passed by the Additional Sessions Court (Adhoc-II) Kalpetta, in Sessions Case No.379/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 14.01.2005 at 06.30 p.m., the accused was found in possession of 9 litres of arrack for sale at Nambiarkunnu in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Crl.A No.2474 of 2008 3 Sessions Court, from where it was made over to the Trial Court. On the 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 to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7, and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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 evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. On the side of the defence DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. Crl.A No.2474 of 2008 4 6. Heard Sri. P. Vijaya Bhanu, the learned Senior counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds: a) The detection was made by an incompetent officer. - b) The prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. 8. The alleged seizure was effected on 14.01.2005 by the Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Wayanad (PW1). At the time of seizure and arrest, PW1 prepared Ext.P2 seizure mahazar. He had drawn the sample at the place of occurrence. PW1 failed to narrate the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P2. He has not given evidence as to the nature of the Crl.A No.2474 of 2008 5 seal used. The specimen of the seal was also not produced before the Court at the time of production of the sample. 9. In **Bhaskaran v. State of Kerala (2020 KHC 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. 10. The learned counsel for the accused further relied on **Kumaran v. State of Kerala** [2016 (4) KLT 718], to contend that the prosecution failed establish the tamperproof despatch of the sample from the Court to the laboratory. The learned counsel for the accused contended that Ext.P5 the forward note/requisition for sending sample to the laboratory does not contain the name of the person with whom the sample was forwarded to the laboratory. The learned Magistrate who countersigned the same failed to mention the date on which he made his initial. The space Crl.A No.2474 of 2008 6 meant for mentioning the name of the Excise guard to whom the sample was forwarded to the laboratory is left vacant. 11. While considering a similar fact situation this Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove - the tamper proof despatch of the sample to the_ Crl.A No.2474 of 2008 7 _laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 12 _._ In the present case neither the property clerk nor the Excise official with whom the sample was forwarded to the laboratory was examined. The prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. 13. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, a Preventive Officer of Crl.A No.2474 of 2008 8 Excise Enforcement and Narcotic Special Squad, Wayanad. The detection was made on 14.01.2005. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Crl.A No.2474 of 2008 9 Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an inspector, Excise Range Office, Sulthanbathery had no such powers. 14. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 15. The learned counsel for the accused relied on **Suresh v. State of Kerala [2017 (2) KHC 891]** to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh's case** (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 16. The prosecution failed to establish the tamper proof despatch of the sample to the laboratory. Therefore, Ext.P7, Certificate of Chemical Analysis has no evidentiary value. Crl.A No.2474 of 2008 10 17. The resultant conclusion is that the prosecution failed to establish the link connecting the accused with contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above **Sd/-** **K.BABU JUDGE** AP