Rajan @ Swaminathan Post Orkattiri v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 8[TH] DAY OF JULY 2021 / 17TH ASHADHA, 1943** **CRL.A NO. 1170 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1073/2006 OF ADDITIONAL DISTRICT** **& SESSIONS COURT, VADAKARA, KOZHIKODE** ## **APPELLANT/ACCUSED:** RAJAN @ SWAMINATHAN POST ORKATTIRI,VIA.VADAKARA, KOZHIKODE DISTRICT. BY ADV SRI.C.VALSALAN SRI.RAKESH ROSHAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY (SHO EDACHERY POLICE STATION IN CRIME NO.42/2006), BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1170 of 2008 2 ## **K.BABU, J.** -------------------------------------- **Criminal Appeal No.1170 of 2008** --------------------------------------Dated this the 8[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 17-05-2008, passed by the learned Additional Sessions Judge, Vadakara in S.C No.1073/2006, 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 04-02-2006 at 12.30 hrs., the accused was found in possession of 4 bottles of White Mischief Classic brandy each containing 375 ml, 8 bottles of Green Magic brandy each containing 375 ml, 8 bottles of Green Magic brandy each containing 180 ml and 50 ml of Green Magic brandy contained in a 180 ml bottle at a public lane near Orkateri L.P School at Eramel. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under 3 Crl.A No.1170 of 2008 Sec.55(a) of Abkari Act before the JFCM Court, Vadakara. The case was committed to the Sessions Court, Kozhikode from where it was made over to the Additional Sessions Court, Vadakara. On appearance of the accused charge was framed against him for the offence punishable under 55(a) of 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 PW1 to PW7 and marked Exts.P1 to P8 to prove the case against the accused. 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 was 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 Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was Crl.A No.1170 of 2008 4 sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.1 Lakh. 7. Heard Sri.Rakesh Roshan, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended as follows: - (i) The prosecution failed to establish the identity of the person who was allegedly in possession of the contraband substance at the place of occurrence. - (ii) The prosecution failed to prove that the articles said to have been seized from the place of occurrence eventually reached 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 is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. Crl.A No.1170 of 2008 5 ## **The Point** 11. PW3, the Sub Inspector Police, Edacheri Police station on 04-02-2006 detected the offence. He gave evidence that on 04-022006 on getting reliable information that the accused was engaged in the sale of foreign liquor at the place of occurrence, the police party led by him reached there and found the accused in possession of contraband articles. According to PW3, on seeing the police occurrence party, the accused ran away from the scene of abandoning the contraband articles. The police team could not apprehend the accused, PW3 added. PW3 has given evidence that the contraband articles were seized by him from the place of occurrence by way of Ext.P2 seizure mahazar. PW1, the police constable who had accompanied PW3, supported the prosecution case. 12. PW4 and PW6, the independent witnesses examined to prove the incident proper, did not support the prosecution case. PW5, the S.I of Police, Edacheri Police Station conducted investigation. PW7, the thondi clerk of JFCM Court, Vadakara gave 6 Crl.A No.1170 of 2008 evidence that on 06-02-2006 he received the articles produced before the court and that the samples were forwarded to the Chemical Examiner's laboratory on 09-03-2006. 13. The learned counsel for the appellant/accused submitted that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband articles at the scene of occurrence. PW3, the detecting officer and PW1, the police constable who had accompanied him, are the witnesses who identified the accused in the court. Both, PW3 and PW1, claimed to have seen the person in possession of the contraband articles from a distance of about 50 metres. Going by their evidence they had only a fleeting glimpse of the person who ran away from the scene after abandoning the contraband articles. PW1 stated that he had no previous acquaintance with the accused. But the version of PW3 is that he had previous acquaintance with the accused. Ext.P2 seizure mahazar does not contain the narration of any of the features of the man who was carrying the contraband substance at the place of occurrence. In Ext.P2 seizure mahazar PW3 did not mention that 7 Crl.A No.1170 of 2008 he had previous acquaintance with the accused. PW3 also failed to give evidence as to how he had got acquaintance with the accused prior to the incident. If the official witnesses had any previous acquaintance with the accused it would have been mentioned in Ext.P2 seizure mahazar. No materials have been placed by the prosecution to establish that the accused was involved in any other crimes prior to this incident. PW1 and PW3 identified the accused in the court on 19-04-2008 approximately after two years. No test identification parade was conducted to test the powers of observation of the official witnesses who identified the accused in court. The possibility that PW1 and PW3 committed a mistake in identifying the accused as the person who had carried the contraband substances at scene of occurrence cannot be ruled out. Resultantly, the identification of the accused by these witnesses cannot be accepted. 14. The learned counsel for the appellant/accused further submitted that the prosecution failed to establish that the sample bottles eventually reached the Chemical Examiner's laboratory in a 8 Crl.A No.1170 of 2008 tamper proof condition. Ext.P2 seizure mahazar does not contain the nature and description of the seal affixed on the sample bottles. The nature of the seal used is not mentioned in the seizure mahazar. The nature of the specimen seal provided in Ext.P5, copy of the forwarding note, is not legible. The specimen of the seal has also not been affixed in the seizure mahazar, which was the contemporaneous document prepared at the scene of occurrence evidencing seizure. PW1 and PW3 have not given evidence as to the nature of the seal affixed on the sample bottle. While considering a similar fact situation this Court in _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) held thus: “ _20. PW5 has not given evidence as to the nature or description of the seal which he had affixed on the bottle containing the sample. Ext.P3 seizure mahazar is also silent on this aspect. There is no evidence to show that PW5 had produced the specimen of the seal in the court or that he had provided the same in the forwarding note prepared by him for sending the sample for analysis. The nature of the specimen seal provided in Ext.P6 copy of the forwarding note is not legible. In these circumstances, there is no assurance that the very same sample allegedly drawn by PW5 at the spot of the occurrence from the liquid in the can was produced in the court and the very same sample was forwarded for analysis and that Ext.P7 chemical analysis report relates to the very same sample._ _21. 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. The specimen of the seal shall be produced in the court. The 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_ Crl.A No.1170 of 2008 9 _genuineness of the sample produced in the court (See_ _**Achuthan v. State of Kerala : 2016 (1) KLD 391 : ILR 2016 (2) Ker 145** ). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See_ _**Majeedkutty v. Excise Inspector : 2015 (1) KHC 424** ). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found 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 without any tampering (See_ _**Rajamma v. State of Kerala : 2014 (1) KLT 506** ).”_ ## 15. In _**Krishnadas v. State of Kerala**_ [2019 KHC 191] this Court ## held thus: _“7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied)_ ## 16. In these circumstances there is no assurance that the very same samples allegedly drawn by PW3 at the scene of occurrence were produced in the court and forwarded to the Chemical Crl.A No.1170 of 2008 10 ## Examiner's laboratory for analysis. 17. I have mentioned above that the specimen seal affixed in Ext.P5 copy of the forwarding note is not legible. Exhibit P5 is silent with regard to the name of the person with whom the bottles containing the sample were sent for analysis. Exhibit P6 certificate of chemical analysis would show that the samples were received in the Chemical Examiner's laboratory through a police constable No.6602. The thondi clerk of the court who gave evidence as PW7 has not given any evidence as to the person with whom the samples were forwarded to the Chemical Examiner's laboratory. The police constable with whom the samples were entrusted for delivering the same to the laboratory was not examined as a witness. It was imperative for the prosecution to examine the police constable who received the samples from the court to establish tamper-proof despatch of the sample to the laboratory {Vide: _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], _**Jayakumar v. State of Kerala**_ (2018 KHC 3165)}. There is no evidence to convince the court that the specimen seal or specimen impression of the seal has been provided to 11 Crl.A No.1170 of 2008 the Chemical Examiner. In the above circumstances, no evidentiary value can be given to Ext.P6 chemical analysis report. 18. 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 that tested have to be corelated. 19. 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 place of occurrence (Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]. 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 arising from the absence of link evidence as discussed above. Crl.A No.1170 of 2008 12 20. 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 55(a) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS