Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 CRL.A NO. 2335 OF 2006** **AGAINST THE JUDGMENT DATED 20.11.2006 IN SC 199/2006 OF** **ADDITIONAL SESSIONS JUDGE, (ADHOC-I), KOTTAYAM APPELLANT/ACCUSED NO.1:** **RAJAN,S/O NARAYANAN, NARIKUZHIYIL VEEDU, KALAYAKANDAM BHAGOM, MELAMBARA KARA.** **BY ADVS. C.C.THOMAS (SR.) NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, ERATTUPETTA POLICE STATION, KOTTAYAM REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2335 OF 2006** 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.2335 of 2006** **------------------------------------** Dated this the 3[rd] day of August, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 20.11.2006, passed by the learned Additional Sessions Judge, (Adhoc-I), Kottayam in S.C.No.199/2006, the accused No.1 has preferred this appeal. 2. By the impugned judgment the accused No.1 was convicted of the offences punishable under Sections 55(b) and 55(g) of the Kerala Abkari Act. 3. The prosecution case is that on 13.03.2005 at about 04.15 p.m., the appellant and the other accused (A2) were found distilling illicit arrack in the building bearing door No.TP-1/33 at Melamparakara in Thalappalam Village. The offence was detected by the S.I of Police, Erattupetta Police Station. 4. After completion of investigation final report **CRL.A NO. 2335 OF 2006** 3 was submitted against the appellant and the other accused for the offences punishable under Sections 55(b) and 55(g) of the Abkari Act before the Judicial First Class Magistrate Court, Erattupetta. 5. The case was committed to the Sessions Court, Kottayam, from where it was made over to the Trial Court. On appearance of the accused charges were framed against them for the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs.1 to 5, Exts.P1 to P7 and MOs.1 to 6. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the appellant and the other accused and hence they were called upon to **CRL.A NO. 2335 OF 2006** 4 enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the appellant/accused No.1 is guilty of offences under Sections 55(b) and 55(g) of the Abkari Act and he was convicted thereunder. Accused No.2 was acquitted of the charges. The appellant/accused No.1 was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellant/accused No.1 and Sri.M.C.Ashi., the learned Public Prosecutor appearing for the respondent. 9. The counsel for the appellant/accused No.1 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, **CRL.A NO. 2335 OF 2006** 5 submitted that the prosecution could well establish the charges 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. ## **THE POINT** 12. PW3, the S.I. of Police, Erattupetta Police Station, on 13.03.2005 at about 3.30 p.m., on getting reliable information that the appellant and the other accused were engaged in distilling illicit arrack in the building bearing door No.TP-1/33 at Melamparakara in Thalappalam Village, searched therein and found that the accused were distilling arrack. PW3 has given evidence that the accused were found boiling Wash in an Aluminium vessel in the kitchen room of the building and collecting arrack in a bottle. PW3 seized the contraband substances and the other utensils found in the building in the possession of the accused. PW3 seized a bottle containing 350 ml of illicit arrack in a 750 ml bottle and another bottle containing 450 ml of arrack in a 500 ml bottle. He **CRL.A NO. 2335 OF 2006** **==> picture [7 x 9] intentionally omitted <==** also collected 150 ml arrack each in two 375 ml bottles as sample. PW1 sealed the bottles containing the sample and the other two bottles. 13. PWs1 and 2, the independent witnesses, did not support the prosecution case. PW4 conducted investigation and submitted final report before the Court against the accused. PW5, Secretary of the Thalappalam Grama Panchayath, gave evidence that the building involved was in the ownership of one Kunjan Narayanan, the father of the appellant. 14. The learned counsel for the appellant/accused No.1 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 bottles containing the sample. - (b) Ext.P1 search list, the contemporaneous document **CRL.A NO. 2335 OF 2006** **==> picture [7 x 9] intentionally omitted <==** evidencing seizure, does not contain any narration as to the nature and description of the seal affixed on the bottles containing the sample. - (c) There is no convincing evidence that the bottles containing the sample were forwarded to the Chemical Examiner's laboratory in a tamper proof condition. - (d) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 15. I have gone through the oral evidence of PW3, the detecting officer. He has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. Ext.P1, search list, is also silent regarding the nature and description of the seal stated to have been affixed on the bottles containing the sample. 16. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and **Krishnadas v. State of Kerala** (2019 **CRL.A NO. 2335 OF 2006** **==> picture [7 x 9] intentionally omitted <==** KHC 191), this Court held that the detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottles containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. 17. The evidence regarding the nature and description of the seal affixed on the bottles containing the sample is highly required to enable the Court to satisfy the genuineness of the sample produced in the court. In the instant case, there is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer. 18. Learned counsel for the appellant/ accused No.1 further contended that Ext.P5, the copy of the forwarding note, does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory and that the learned Magistrate did not mention the date on which he made his initial thereon. This is more relevant, particularly when the name of the official with whom the sample was sent for analysis is **CRL.A NO. 2335 OF 2006** 9 not mentioned. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [2016 ## (4) KLT 718], held 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 of 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 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 **CRL.A NO. 2335 OF 2006** 10 sample to the laboratory and consequently, the tamper-proof 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.” (Emphasis supplied) 19. In the instance case the prosecution has not examined either the thondy clerk of the court or the Police official to prove the tamper proof despatch of the sample to the laboratory. 20. This Court is in the dark as to the date on which the sample was handed over to the Police official concerned, who received the same from the court for delivering to the Chemical Examiner's laboratory. Ext.P5 is silent on this aspect. 21. Ext.P6, certificate of chemical analysis, would show that the bottles containing the sample were received in the laboratory through the Police Constable No.5044. The sample remained in the custody of the property clerk of the court and the Police official who delivered the same to the Chemical Examiner's laboratory. None of these **CRL.A NO. 2335 OF 2006** 11 witnesses were examined by the prosecution to prove 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 sample 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** [(1980) 3) SCC 303]). 22. Ext.P6, the certificate of Chemical analysis, contains a certification that the seals on the bottles were intact and found tallied with the sample seal provided. The date of preparation of Ext.P5 is not evident. It was produced before the court on 08.04.2005. The 'impression' seen against the space provided for specimen seal is not legible. In the absence of any convincing evidence to show that a legible specimen impression of the seal was forwarded to the Chemical Examiner's laboratory, the certification contained in Ext.P6 to the effect that the seals on the bottles were intact and found tallied with the sample seal provided **CRL.A NO. 2335 OF 2006** 12 cannot be accepted. 23. While considering a fact situation in which the prosecution failed to establish that the specimen impression of the seal was not produced before the court and forwarded to the Chemical Examiner, this Court in **Rajamma v. State of Kerala** [2014 (1) KLT 506], 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”. 24. 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 given to Ext.P6 **CRL.A NO. 2335 OF 2006** 13 chemical analysis report. 25. In the instant case, the prosecution failed to establish that the specimen impression of the seal, as required, had been forwarded to the Chemical Examiner's laboratory. Hence, Ext.P6 has no evidentiary value. 26. Ext.P6, the certificate of Chemical analysis, would show that the sample reached the Chemical Examiner's laboratory on 16.04.2005, but the same was analysised only on 10.03.2006. 27. The learned counsel for the appellant/accused No.1 contended that the delay in analysis of the sample, has not been explained satisfactorily and hence it is fatal to the prosecution. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the **CRL.A NO. 2335 OF 2006** 14 sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 28. In the instant case, the delay of more than nine months in the analysis of the sample remains unexplained. 29. 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 co-related. 30. 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. 31. In the instant case, the prosecution was unable to establish the link connecting the accused with the **CRL.A NO. 2335 OF 2006** **==> picture [13 x 9] intentionally omitted <==** 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. 32. 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 No.1 is therefore not guilty of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. He is acquitted of the charges levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS