Purushu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **CRL.A NO. 1833 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 758/2005 OF ADDITIONAL DISTRICT &** **SESSIONS COURT, VADAKARA, KOZHIKODE** ## **APPELLANT/ACCUSED:** **PURUSHU, S/O. KELAPPAN, KANNOTH THAZHE KUNI,, VANIYUR ROAD, KUMMAMKODE, VADAKARA TALUK.** **BY ADV SRI.T.G.RAJENDRAN** ## **RESPONDENTS/COMPLAINANT & STATE:** - **1 STATION HOUSE OFFICER NADAPURAM.** - **2 STATE OF KERALA REPRESEENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2021,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1833/2007 2 ## **K.BABU, J.** **--------------------------------------** ## **Criminal Appeal No.1833 of 2007** --------------------------------------Dated this the 10[th] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 28-09-2007, passed by the learned Additional Sessions Judge, Vadakara in S.C.No.758/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 19-12-2003 at 17.30 hours at Ekarath near Nadapuram, the accused was found transporting 60 bottles of Indian Made Foreign liquor, each containing quantities ranging from 180 ml to 750 ml, in an Autorickshaw bearing registration No.KL-11-J-8418. The Sub Inspector of Police, Nadapuram, detected the offence. 4. After completion of the investigation, the final report was submitted against the accused for the Crl.A No.1833/2007 3 offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court, Nadapuram. The case was committed to the Sessions Court, Kozhikode 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 55(a) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the trial court for the aforesaid offence. 5. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P6 and MOs 1 to 7. 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 Crl.A No.1833/2007 4 thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 55(a) of the Abkari Act, and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 2 years and to pay a fine of Rs.1 Lakh. 7. Heard Sri.T.G.Rajendran, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the Analyst in the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration Crl.A No.1833/2007 5 is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW1, the detecting officer, has given evidence that on 19-12-2003, during the course of law and order patrol duty, he inspected the vehicle involved in this case driven by the accused and found that he was in possession of 60 bottles of Indian Made Foreign Liquor. PW1 has stated that he seized the bottles containing the foreign liquor as per Ext.P1 seizure mahazar. According to PW1, the accused was arrested from the spot. 12. PW2, a police constable who had accompanied PW1, supported the prosecution case. PW3, the independent witness examined to prove the incident proper, did not support the prosecution case. PW8, the property clerk of the court, gave evidence that on 20-12-2003, he received the articles produced by the Crl.A No.1833/2007 6 detecting officer. 13. The learned counsel for the accused relied on the following circumstances to substantiate his contention that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was eventually subjected to chemical analysis. - (a) There is no evidence regarding the nature and description of the seal affixed on the bottles containing the sample. - (b) The specimen impression of the seal stated to have been affixed on the bottles containing the sample had not been produced before the court and forwarded to the Chemical Examiner. 14. The oral evidence of PW1 is silent regarding the nature and description of the seal stated to have been affixed on the bottles containing the sample. Ext.P1 is also silent on this aspect. 15. In _**Bhaskaran K. v. State of Kerala and another**_ Crl.A No.1833/2007 7 (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ [2019 KHC 191], this Court held that the detecting officer who drew the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample and nature and description of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be provided in the seizure mahazar, so as to enable the court to satisfy the genuineness of the sample produced in the court. 16. The specimen impression of the seal had not been produced before the court and marked in evidence. Exhibit P4, the copy of the forwarding note, does not contain the specimen impression of the seal affixed on the sample by the detecting officer. Exhibit P4 only contains the seal of the Magistrate's Court concerned. Exhibit P6, the certificate of chemical analysis, contains a statement that the seal on the bottles were intact and found tallied with the sample seal provided. Crl.A No.1833/2007 8 There is no iota of evidence to show that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner. In the absence of any convincing evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner, the certification in Ext.P6, to the effect that the seals on the bottles were intact and found tallied with the sample seal provided, cannot be accepted. In _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)], while considering a similar fact situation, 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 PW.1 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_ Crl.A No.1833/2007 9 _from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant.”_ 17. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6, certificate of chemical analysis. 18. It is the admitted case of the prosecution that the sample changed different hands. The bottles containing the sample remained in the court for more than a year. 19. PW8, the then property clerk of the court, stated that he had received the properties on 20-12-2003. He failed to testify that the seal on the samples were intact. PW8 further stated that his successor thereafter handled the samples. Exhibit P4 is silent regarding the police official with whom the bottles containing the sample were forwarded to the Chemical Examiner. Exhibit P6 would show that the Crl.A No.1833/2007 10 bottles containing the sample were delivered to the Chemical Examiner’s laboratory through a police constable No.5997. Though PW8, the property clerk who received the properties in the court, was examined, he failed to testify that the bottles containing the sample remained in his custody in a tamper-proof condition. As stated above, his successor handled the sample thereafter and had taken steps to send the sample to the Chemical Examiner’s laboratory. The successor of PW8, the police official who received the samples from the court, and the police official who delivered the samples to the Chemical Examiner’s laboratory were not examined to establish that while in their custody, the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution (Vide: _**State of Rajasthan v. Daulat Ram**_ Crl.A No.1833/2007 11 [AIR (1980) SC 1314]. 20. In _**Vijay Pandey v. State of U.P**_ (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 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 substance said to have been seized from the possession of the accused {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 22. 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. The accused is entitled to benefit of Crl.A No.1833/2007 12 doubt arising from the absence of link evidence as discussed above. 23. The learned counsel for the accused further contended that the prosecution failed to adduce convincing evidence to show that the accused was arrested from the scene as pleaded. The learned counsel submitted that the case of the detecting officer that the accused was arrested from the scene as pleaded is doubtful in view of the non-production of the arrest memo, which is a very crucial document required to be prepared contemporaneously at the time of the arrest to show the genuineness of the arrest. It is pertinent to note that the detecting officer, though testified that he had arrested the accused, failed to state that an arrest memo was prepared. 24. Yet another aspect which gives rise to a doubt regarding the arrest is that there is no evidence to show that one friend or relative or other person known to him was informed of the arrest of the accused Crl.A No.1833/2007 13 immediately after the arrest in compliance with the directions of the Apex Court in _**D.K.Basu v. State of West Bengal**_ (1997 KHC 245 = AIR 1997 SC 610). 25. The learned counsel relied on **Ramankutty v. The Excise Inspector** [2013 (3) KHC 308] to substantiate his contentions. In **Ramankutty’s case** (supra) this Court held that if the arrest is not proved, the entire case set up by the prosecution that the accused was arrested with the contraband will fall to ground. 26. The resultant conclusion is that the prosecution failed to establish the arrest of the accused from the scene of occurrence. In the absence of convincing evidence regarding the arrest of the accused, the genesis of the prosecution case becomes doubtful. 27. 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 Crl.A No.1833/2007 14 guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** **KAS**