Radhakrishnan s/o Narayanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943 CRL.A NO. 91 OF 2013** **CRIME NO.27/2009 OF Ottappalam Excise Range Office, Palakkad AGAINST THE JUDGMENT DATED 21.12.2012 IN SC 583/2010 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC) I PALAKKAD APPELLANT/ACCUSED:** RADHAKRISHNAN S/O.NARAYANAN,PUTHENVEETTIL(MOOCHIKKAL VEETTIL),LAKKIDI,PERUR,OTTAPPALAM. BY ADV SMT.M.A.ZOHRA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE EXCISE RANGE INSPECTOR OF OTTAPPALAM EXCISE RANGE,PALAKKAD DISTRICT,THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA,ERNAKULAM-682031. BY SRI. SANAL P. RAJ, PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 1.09.2021, THE COURT ON 15.9.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.91/2013 -:2:- J U D G M E N T Dated this the 15[th] day of September, 2021 This is an appeal filed u/s 374(2) of the Cr.P.C against the judgment of conviction and sentence passed by the Additional Sessions Court Adhoc-1, Palakkad in SC No.583/2010 dated 21/12/2012. 2. The accused/appellant faced trial for offence u/s 8(1) and (2) of the Abkari Act. The prosecution case in short is that on 26/5/2009 at about 5.30 p.m., the accused was found in possession of 2 litres of illicit arrack in front of the house of one Pazhani in Pudur Desom in Lakkidi – Perur Village of Ottapalam Taluk in contravention of the Abkari Act and Rules. 3. PW1, the Assistant Excise Inspector, Excise Range Office, Ottapalam along with PW2, Preventive Officer, were conducting patrolling duty in Pudur Desom and when they reached in front of the house of one Pazhani at about 5.30 p.m., they found the accused coming from the opposite side carrying a plastic bottle (MO1). On seeing them, the accused tried to escape Crl.Appeal No.91/2013 -:3:- and he was apprehended. The plastic bottle carried by the accused was seized and when it was opened it was found that it contained illicit arrack. The accused was arrested at the spot. The sample of arrack was taken in a bottle. It was sealed, packed and labelled in the presence of the witness who was examined as PW3. Ext.P2 mahazar was prepared. Ext.P1 arrest memo was prepared at the time of arresting the accused. Thereafter PW1 registered crime against the accused for the offence punishable u/s 8(1) and (2) of the Abkari Act. Ext.P3 is the Crime and Occurrence Report. The accused and seized articles were produced before the Magistrate Court. The sample was sent for chemical analysis and after the chemical analysis, the report was received which was marked as Ext.P8. The report shows that the sample contained ethyl alcohol (25.71%). After completing the investigation, PW4 filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case for trial to the Court of Sessions. 4. The accused appeared before the Court below. After hearing both sides, the court below framed charge against the accused u/s 8(1) and (2) of the Abkari Act. The charge was read Crl.Appeal No.91/2013 -:4:- over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs 1 to 4 and marked Exts.P1 to P8. MO1 was identified. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. After trial, the court below found the accused guilty u/s 8(1) r/w 8(2) of the Kerala Abkari Act and convicted the accused for the said offence. The accused was sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of `1,00,000/- in default to suffer simple imprisonment for three months u/s 8(1) r/w 8(2) of the Abkari Act as per the impugned judgment. The said judgment is under challenge in this appeal. 6. Heard Smt.M.A.Zohra, learned counsel for the appellant/accused and the learned Public Prosecutor Sri.Sanal P.Raj. 7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant as illegal and unsustainable contending that the official with whom the sample was sent for chemical analysis was not mentioned in the forwarding note nor did the prosecution examine the thondi clerk Crl.Appeal No.91/2013 -:5:- of the court or excise guard concerned to prove the tamper proof despatch of the sample to the laboratory, the benefit of which should, definitely, go to the accused. I find some force in the said argument. A similar issue was considered by this Court in _**Kumaran P. v. State of Kerala and Another**_ (2016 (5) KHC 632). It was held in the said decision 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 o 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_ Crl.Appeal No.91/2013 ## -:6:- _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 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 tamperproof 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"._ 8. Ext.P6 is the forwarding note whereby the sample was forwarded to the chemical examiner. It is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P8 chemical analysis report shows that the sample was received in the laboratory through the excise guard Sri.D.Ramesan. It is also not discernible from Ext.P6 as to when Crl.Appeal No.91/2013 -:7:- the learned Magistrate put the initial in the forwarding note. The date is absent. Since the date was not written by the learned Magistrate when the initial was made, it is not clear in Ext.P6 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P6. The prosecution did not examine the thondi clerk of the court or the excise guard concerned to prove the tamper proof despatch of the sample to the laboratory. It is fatal to the prosecution case. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in question. That apart, MO1 produced before the Court does not contain the label. In _**Moothedath Sivadasan v. State of Kerala**_ (2021 (2) KLJ 80), this Court recently has held that in the absence of any link evidence to show that the very same sample which was 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 accused. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution evidence. For these reasons, I hold that the Crl.Appeal No.91/2013 -:8:- conviction and sentence passed by the court below cannot be sustained. In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** Rp