Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** **CRL.A NO. 2140 OF 2008** **AGAINST THE JUDGMENT IN SC 311/2007 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** RAJAN, S/O VARGHESE, NELLIKUNNEL VEEDU,INCHAPATHAL KARA, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK. BY ADVS. RENJITH B.MARAR LAKSHMI.N.KAIMAL L.RAJESH NARAYAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2140 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2140 of 2008 --------------------------------------Dated this the 30[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.08.2008, passed by the Additional Sessions Judge (Adhoc)-II, Thodupuzha in S.C.No.311/2007, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.02.2007 at 1.30 p.m, the accused was found in possession of 2 litres of arrack on the public road near Bathel St.Mary's Chapel at Inchapathal. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Adimaly. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Trial Court. Crl.A No.2140 of 2008 3 On the 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 to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6 and MO1. 5. After the closure of the prosecution evidence, 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 evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. From the side of the defence, DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. B.Renjith Marar, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.2140 of 2008 4 judgment of conviction and sentence on the following grounds: - (a) The prosecution failed to prove the tamperproof despatch of the sample from the Court to the laboratory. - (b) The officer who detected the offence was not empowered to detect the offence in view of the Government Notification SRO.No.234/1967. 8. Exhibit P5, the copy of the forwarding note does not contain the date on which the sample was forwarded to the Chemical Examiner's laboratory. Exhibit P5 is also silent with regard to the name of the person with whom the sample was sent for analysis. The learned Magistrate, who countersigned Ext.P5, has not put the date on which he made his initial. In such a situation, the prosecution ought to have examined the property clerk of the Court or the Excise official concerned. While dealing with 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 Crl.A No.2140 of 2008 5 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 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.” 9. The sample remained in the custody of the property clerk of the Court, the Excise official who received the sample from the 6 Crl.A No.2140 of 2008 Court and Sri. V.S.Binil Kumar, another Excise guard who delivered the sample to the laboratory. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The inevitable consequence 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 which it remained in the hands of the officials concerned. This view is supported by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 10. 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 11. 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 {Vide: State of Rajasthan Crl.A No.2140 of 2008 7 v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 12. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 13. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case, the offence was detected by PW3, the Excise Inspector of Excise Enforcement and Anti-Narcotic Special Squad, Idukki. The detection was made on 17.02.2007. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise officials to discharge the various functions under the Kerala Abkari Act as Abkari officers. By the said notification only Abkari officials 8 Crl.A No.2140 of 2008 attached to Excise Range offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 14. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. Crl.A No.2140 of 2008 9 15. The learned counsel for the appellant relied on Suresh v. State of Kerala [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in Suresh's case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 16. 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. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS