PULIYINKAL SREEDHARAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 30[TH] DAY OF JUNE 2021 / 9TH ASHADHA, 1943 CRL.A NO. 963 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 33/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY, KANNUR** ## **APPELLANT/ACCUSED:** PULIYINKAL SREEDHARAN AGED 52 YEARS S/O.KANNAN, KALLIAD AMSOM, ELATHOOR DESOM,, CHOLAKKARI.THALIPARAMBA TALUK,KANNUR DISTRICT. BY ADV SRI.SAJEEV.T.P. ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SRI. BREEZ M.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal No.963 of 2008 2 ## **K.BABU, J.** -------------------------------------- **Criminal Appeal No.963 of 2008** --------------------------------------Dated this the 30[th] day of June, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 28-04-2008 passed by the learned Additional Sessions Judge (Adhoc-I), Thalassery in Sessions Case No.33/2007, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 28-07-2006 at 6.50 p.m., the accused was found in possession of 750 ml of illicit arrack at Pysayi in Kannur district. PW1, the Sub Inspector of Police, Irikkur Police Station seized the contraband substance from the possession of the accused. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act before the JFCM-III, Kannur. The case was committed to the Sessions Court, Thalassery from 3 Crl.Appeal No.963 of 2008 where it was made over to the Additional Sessions Court (Adhoc-I), Thalassery. On appearance of the accused charge was framed against the accused for the offence punishable under Section 8(2) of the Kerala 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 P8. 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 trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Sections 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for 3 months and to pay fine of Rs.1 Lakh. 7. Heard Sri.Sajeev.T.Prabhakaran, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public 4 Crl.Appeal No.963 of 2008 Prosecutor appearing for the respondent State of Kerala. 8. The learned counsel for the appellant canvassed that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence, ultimately reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution well established the ingredients of the offence alleged against the accused and the impugned judgment requires no interference. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW1, the Sub Inspector of Police, Irikkur, who detected the offence has given evidence in support of the arrest and seizure of the accused on 28-07-2006 from the place of occurrence. PWs 2 and 3, the independent witnesses, did not support the prosecution case. 12. PW4, the additional Sub Inspector of Police, Mattannoor conducted the initial investigation. PW5, the Sub Inspector of Police, Irikkur completed the investigation and submitted final report 5 Crl.Appeal No.963 of 2008 against the accused. 13. The learned counsel for the appellant submitted that there is no convincing evidence to show that the contraband allegedly recovered from the place of occurrence reached the Court as well as the Chemical Examiner's laboratory. The learned counsel for the appellant canvassed that there is nothing convincing to show that the arrack allegedly drawn as sample was sealed at the place of occurrence. 14. PW1 has not given evidence as to the nature and description of the seal which he had affixed on the bottle containing the sample. Exhibit P3, seizure mahazar, is also silent on this aspect. Exhibit P6, copy of the forwarding note requesting to forward the sample for chemical examination does not contain the specimen seal stated to have been affixed on the bottle containing the sample. The indisputable conclusion is that there is no assurance that the very same sample stated to have been drawn by PW1 at the place of occurrence from the arrack allegedly seized from the possession of the accused reached the Court as well as the Chemical Examiner's laboratory. 15. It is also pertinent to note that PW1, the detecting officer, 6 Crl.Appeal No.963 of 2008 who has drawn the sample, has not given evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used has not been mentioned in the seizure mahazar. 16. This Court in _**Achuthan v. State of Kerala**_ (ILR 2016 (2) Ker 145) and _**Bhaskaran v. State of Kerala and another**_ (2020 KHC 5296) held that 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. 17. The prosecution has not produced any material to show that the specimen of the seal affixed on the bottle containing the sample was produced before the court and the same was forwarded to the Chemical Examiner for verification. When the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the chemical examiner for verification so as to ensure that the sample seal, so provided, was tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report as it cannot be concluded that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached 7 Crl.Appeal No.963 of 2008 the Chemical Examiner's laboratory {Vide: _**Rajamma v. State of Kerala**_ (2014 (1) KLT 506)}. 18. Exhibit P6, copy of the forwarding note, does not contain the name of the official, with whom the sample was sent to the laboratory . This Court is in the dark as to who received the sample from the court. 19. Admittedly, the sample changed several hands before reaching the public analyst. It remained in the custody of the thondi clerk, the police constable, who had received the sample from the court, and the official who delivered the same to the laboratory. 20. Hence, non-examination of these witnesses to prove that while in their custody the seal was not tampered with, is a serious infirmity. 21. 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 contraband at the scene of occurrence. {See _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314] and _**Sathi v. State of Kerala**_ [2007 (1) KHC 778]}. 22. In this circumstance, it may not be safe to record a 8 Crl.Appeal No.963 of 2008 conviction against the accused as he is entitled to benefit of doubt arising from the absence of link evidence. The conviction entered by the court below ignoring these vital aspects of the matter cannot therefore be sustained. In the result, the appellant is not found guilty of the offence punishable under Sec.8(2) of Abkari Act. He is acquitted thereunder and set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS