Radhamma d/o Narayani v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943** **CRL.A NO. 2130 OF 2006** **AGAINST THE JUDGMENT DATED 12.10.2006 IN SC.NO.633/2002 OF ADDITIONAL SESSIONS JUDGE (ABKARI, KOTTARAKKARA, KOLLAM** ## **APPELLANT/ACCUSED:** **RADHAMMA D/O.NARAYANI, BIJU BHAVAN, INCHAKKADU MURI,, KALAYAPURAM VILLAGE, KOTTARAKKARA TALUK.** **BY ADV SRI.B.S.SWATHI KUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2130 OF 2006** 2 ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.2130 of 2006** **------------------------------------** Dated this the 6[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 12.10.2006, passed by the Additional Sessions Judge (Abkari), Kottarakkara in SC.No.633/2002. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 23.10.2000 at about 11.25 a.m., the accused was found in possession of 8 liters of illicit arrack in a Jerrycan and a glass tumbler at Inchakkadu. The offence was detected by the Sub Inspector of Police, Kottarakkara. 4. After completion of 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-I, **CRL.A NO. 2130 OF 2006** 3 Kottarakkara. 5. The case was committed to the Sessions Court, Kollam, from where it was made over to the Trial Court. On appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, she came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P6 and MOs.1 to 3. 7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the accused is **CRL.A NO. 2130 OF 2006** 4 guilty of offence under Section 8(2) of the Abkari Act and she was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.B.S.Swathi Kumar, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. **CRL.A NO. 2130 OF 2006** 5 ## **THE POINT** 12. PW4, the Sub Inspector of Police, Kottarakkara, on getting reliable information that the accused was engaged in the sale of arrack, at 11.20 a.m., on 23.10.2000, proceeded to the place of occurrence and found that the accused was in possession of 8 liters of illicit arrack in a 10 liter can. PW4 seized the contraband substance found in the possession of the accused as per Ext.P1 seizure mahazar. The accused was arrested from the spot at 12.25 p.m. 13. PW1, the Head Constable attached to Kottarakkara Police Station, who had accompanied PW4 in the search and seizure, has given evidence in support of the version given by PW4. PW2 a woman constable, who arrested the accused, also supported the prosecution case. PW3, attester to Ext.P1 seizure mahazar, has not supported the case of the prosecution that the contraband substance was recovered from the possession of the accused. PW4 conducted investigation and submitted final report before the Court against the accused. **CRL.A NO. 2130 OF 2006** 6 14. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory: - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal affixed on the bottle containing the sample. - (c) The specimen impression of the seal used by the detecting officer was not produced before the court and forwarded to the Chemical Examiner's laboratory. 15. The oral evidence of PW4, the detecting officer, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing **CRL.A NO. 2130 OF 2006** 7 the sample. Ext.P1, seizure mahazar, is also silent about the nature and description of the seal stated to have been affixed on the bottle containing the sample. 16. There is no evidence to show that the specimen impression of the seal affixed on the bottle containing the sample had been produced before the court and forwarded to the Chemical Examiner's laboratory. 17. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 18. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer at the scene of occurrence. There is also no evidence to show that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner's laboratory. 19. The copy of the forwarding note, which contains **CRL.A NO. 2130 OF 2006** 8 the specimen impression of the seal used and the name of the official with whom the sample was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in evidence. 20. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 21. 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 **CRL.A NO. 2130 OF 2006** 9 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”. 22. 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 chemical analysis report . 23. This Court is in the dark as to the person with whom the sample was forwarded to the Chemical Examiner's laboratory. The property clerk of the court was the custodian of the sample. Ext.P6 would show that the sample was delivered to the Chemical Examiner's laboratory through a Police Constable No.3450. In such a situation, it was imperative for the prosecution to examine either the property clerk of the court or the Police official who received the sample from the court to **CRL.A NO. 2130 OF 2006** 10 convince the court that the sample was sent in a tamper proof condition to the laboratory. (vide: **Viswanathan v. State of Kerala** [(2016) 3 KHC 38], **Kumaran v. State of Kerala** [2016 (4) KLT 718]). 24. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 25. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 26. 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 doubt **CRL.A NO. 2130 OF 2006** 11 arising from the absence of link evidence as discussed above. 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 guilty of the offence punishable under Section 8(2) of the Abkari Act. She is acquitted of the charge levelled against her. She is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS