Pushpan s/o Surendan v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943** ## **CRL.A.NO.1125 OF 2008** **AGAINST THE JUDGMENT IN S.C.NO.843/2006 OF ADDITIONAL SESSIONS COURT (FAST TRACK)III, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** PUSHPAN S/O.SURENDRAN, SUDHEESH BHAVAN, THACHAPPALI MURI, KEEZHTHONNAKKAL VILLAGE. BY ADV SRI.J.JAYAKUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.1125/2008 ## _**JUDGMENT**_ Dated this the 16[th] day of July 2021 Aggrieved by the judgment dated 8.5.2008, passed by the learned Additional Sessions Judge, Fast Track Court-III, Thiruvananthapuram in Sessions Case No.843 of 2006, the accused has preferred this appeal. The trial court convicted the accused under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 22.2.2005 at about 6 P.M., the accused was found in possession of 1200 ml. of arrack in a bottle having a capacity of 1500 litre along with a glass tumbler at Kaliyikkal in Thiruvananthapuram District. After completion of the 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-II, Attingal. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court (Fast Track Court-III), Thiruvananthapuram. On 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 and therefore, he came to be tried by the trial 3 Crl.A.No.1125/2008 ## court for the aforesaid offence. 3. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6, Exhibits P1 to P9 series and MOs 1 to 3. 4. After closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. The accused 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 any evidence that he may have in support thereof. 5. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 6. Heard Sri.J.Jayakumar, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor. 7. The learned counsel for the appellant contended that 4 Crl.A.No.1125/2008 the prosecution failed to establish the link connecting the accused with the contraband substance. The learned counsel further submitted that the prosecution could not satisfactorily establish that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner’s laboratory. 8. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. 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 10. PW3, the Sub Inspector of Police, Managalapuram Police Station detected the offence. PW3 has given evidence that on 22.2.2005 while the police team led by him was on patrol duty at 5:45 P.M., the accused was found in possession of the contraband substance at Kaliyikkal. The accused was found carrying 1200 ml. of illicit arrack in a bottle having a capacity of 1500 litres. PW3 has given evidence that he searched the body of 5 Crl.A.No.1125/2008 the accused and seized a sum of Rs.25/- from his possession. PW3 seized the contraband substance as per Exhibit P1 seizure mahazar. The accused was arrested from the scene of occurrence. 11. PWs 2 and 6, the independent witnesses examined to prove the incident proper did not support the prosecution case. PW1, the Police Constable who had accompanied PW3 in the search and seizure, supported the prosecution version. PW5, the property clerk of the Judicial First Class Magistrate Court-II, Attingal, has given evidence that as per the directions of the learned Magistrate, she had taken sample and sealed the same and sent the sample for Chemical Examination. PW4, completed investigation and submitted final report. 12. The learned counsel for the appellant submitted that the prosecution miserably failed to establish that the contraband substance stated to have been recovered from the place of occurrence reached the court and that the sample drawn from the bulk quantity of the substance allegedly seized from the possession of the accused reached the Chemical Examiner’s laboratory. The learned counsel further submitted that the 6 Crl.A.No.1125/2008 prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions. - (i) The detecting officer and the official witness who had accompanied him have not given evidence as to the nature and description of the seal affixed on the bottle containing illicit arrack allegedly recovered from the possession of the accused. - (ii) Exhibit P1 mahazar, the contemporaneous document evidencing seizure of the contraband, is silent about the nature and description of the seal used by the detecting officer at the scene of occurrence. - (iii) The specimen impression of the seal affixed on the bottle containing the sample drawn by PW5 in the court has not been produced before the court and marked in evidence. - (iv) There is no assurance that the contraband substance allegedly seized from the possession of the accused was the one analysed at the Chemical Examiner’s 7 Crl.A.No.1125/2008 laboratory as per Exhibit P8 certificate of chemical analysis. 13. The learned counsel for the appellant submitted that there is no convincing evidence to show that the detecting officer sealed the bottle allegedly recovered from the possession of the accused from the scene of occurrence. The learned counsel further submitted that there is no reliable evidence to show that the article recovered from the possession of the accused eventually reached the Magistrate's Court concerned. According to the learned counsel for the appellant, if the detecting officer had sealed the bottle allegedly recovered from the possession of the accused, the nature and description of the seal would have found a place in Exhibit P1 seizure mahazar. 14. Exhibit P1, seizure mahazar, is silent about the nature and description of the seal stated to have been affixed by the detecting officer on the bottle allegedly recovered from the possession of the accused. 15. PW3, the detecting officer and PW1, the police official who had accompanied him, have not given evidence as to the nature and description of the seal affixed on the bottle containing 8 Crl.A.No.1125/2008 the contraband substance allegedly recovered from the possession of the accused. 16. PW5, the property clerk of Judicial First Class Magistrate Court-II, Attingal, has given evidence that she had drawn the sample as per the directions of the learned Magistrate. There is no record before the court evidencing the direction issued by the learned Magistrate to take a specified measure of sample from the bulk quantity of the contraband substance produced by the detecting officer. 17. Exhibit P7 is the copy of the forwarding note by which the sample stated to have been drawn by PW5 was sent to the Chemical Examiner’s laboratory. Exhibit P7 shows that a sealed bottle containing 375 ml. of country made liquor was forwarded to the Chemical Examiner’s laboratory. Exhibit P8 certificate of chemical analysis would show that the Assistant Chemical Examiner to Government analysed a bottle containing 180 ml. of clear and colourless liquor alleged to be country made arrack. This apparent difference in the quantity of liquor contained in the bottle handled in the laboratory and the bottle stated to have been forwarded from the court as per Exhibit P7 raises a suspicion as to 9 Crl.A.No.1125/2008 whether the sample sent from the court as per Exhibit P7 was subjected to analysis at the Chemical Examiner's laboratory which formed the basis of Exhibit P8 certificate of analysis. 18. Exhibit P7 is silent regarding the specimen impression of the seal stated to have been affixed on the sample forwarded to the Chemical Examiner’s laboratory. There is no convincing evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner’s laboratory. 19. While considering a case in which there was no evidence to convince the court that specimen seal or specimen impression of the seal had been provided to the Chemical Examiner, 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.”_ 10 Crl.A.No.1125/2008 20. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be attached to Exhibit P8 certificate of analysis. 21. Yet another discrepancy that affects the credibility of Exhibit P8 certificate of Analysis is the difference in the quantity of arrack stated to have been forwarded to the Chemical Examiner and the quantity of arrack received in the Chemical Examiner’s laboratory. 22. 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 tested have to be co-related. 23. 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. In 11 Crl.A.No.1125/2008 the instant case, the prosecution was unable to establish the link connecting the accused with the contraband substance seized and the sample analysed in the laboratory for the reasons mentioned above. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 24. The learned Sessions Judge passed the impugned judgment of conviction and sentence overlooking these vital aspects of the matter. The accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. The accused is set at liberty. The Criminal Appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl