Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 21ST DAY OF JANUARY 2016/1ST MAGHA, 1937** ## **CRL.A.No. 1346 of 2005 ( )** **---------------------------** **AGAINST THE ORDER/JUDGMENT IN SC 266/2003 of ADDL.SESSIONS COURT (FAST TRACK)COURT-I, ALAPPUZHA DATED 07-07-2005** **APPELLANT(S)/ACCUSED::** **------------------------------------------** **RAJAN, AGED 45 YEARS, S/O. MATHU, ELLUMTHUNDIL VEEDU, KIDANGAYAM MURI NOORANADU, MAVELIKKARA.** **BY ADV. SRI.S.SHANAVAS KHAN** **RESPONDENT(S)/COMPLAINANT:: ------------------------------------------------------** **THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI N SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **LSN** ## **P.D.RAJAN, J.** ## **--------------------------------------------Crl.Appeal. No. 1346 of 2005 ----------------------------------------------** Dated this the 21[st] day of January, 2016 ## **JUDGMENT** This appeal is directed against the conviction and sentence in S.C 266/2003 of the Additional Sessions Court (Fast Track-I), Alappuzha for offence punishable under Section 8(1) & (2) of the Abkari Act. The charge is that, on 28.11.2000 at 5.30 p.m, the Excise Inspector, Mavelikkara Excise Circle Office was conducting patrol duty within his jurisdiction. When he reached at Padmavilasam junction at Nooranadu Village, appellant was found carrying a cannass. The Excise party inspect the can and detected 2 litres of arrack in it. The accused was arrested and contraband articles were seized after preparing a mahazar. Reaching at the Excise Range Office, he registered a case. After completing the investigation, the Excise Range Inspector, Mavelikkara laid charge before the Judicial First Class Magistrate Court, Mavelikkara. From there, the case was committed to the Sessions court, Alappuzha. **Crl.Appeal. No. 1346 of 2005** **2** 2. During trial, the prosecution examined PWs 1 to 6 and marked Exts.P1 to 4 and admitted MO 1 as material object. The incriminating circumstances brought out in evidence were denied by the appellant while questioning him. After hearing under Section 232 of the Cr.P.C appellant was given an opportunity to adduce defence evidence. He examined DW1 and 2 in support of his contention. The Additional Sessions Court, Alappuzha convicted the appellant under Section 8(1) and (2) of the Abkari Act and sentenced to rigorous imprisonment for two years and fine of Rs.1,00,000/- in default simple imprisonment of six months. Being aggrieved by that the accused preferred this appeal. 3. Heard both sides. 4. The learned counsel appearing for the appellant contended that, there is no authenticity in producing the seized article before Chemical Examiners lab. Forwarding note was not prepared by the Excise Officials at the time of producing the article before court. When there is no forwarding note, no guarantee that the **3** ## **Crl.Appeal. No. 1346 of 2005** contraband article seized from the possession of the accused reached in the chemical examiners lab in fool proof condition. 5. The offence was detected by PW1, the Excise Inspector, Excise Circle Office, Mavelikkara. His evidence shows that on 28.11.2000 at 5.30 p.m., while he was conducting patrol duty with excise party, he reached in front of the house of Attali Damodaran. The appellant was found carrying a can having 2 litres capacity. On seeing the Excise party, he became perplexed and tried to run away. PW1 inspected the can and detected it as arrack. He took 2ml as sample and sealed at the place of occurrence. The remaining arrack were properly sealed, labelled and obtained the signature of the accused and the witness present. The seized article and the accused were produced before Excise Office after preparing Ext.P1 mahazar. PW2 and 3 deposed that they never saw the seizure of arrack from the possession of the appellant, but they signed Ext.P1 mahazar. PW5 supported the evidence of PW1, who was in the patrol party. In order to **Crl.Appeal. No. 1346 of 2005** **4** avoid repetition of the same evidence stated by PW1 I am not reiterating entire oral evidence of PW5. 6. The Preventive Officer (PW4), received the contraband article and the accused, accordingly PW4 registered Ext.P2 crime and occurrence report. The appellant was produced before court with remand application and Ext.P3 is the thondi list. PW5 was in charge of Excise Circle Office. PW6, the Excise Range Inspector completed the investigation and laid charge before court. He stated that the articles were produced before court and the sample was sent over to Chemical Examiners lab. Ext P4 is the report of the Chemical Examiner. As per Ext.P4, the sample contained 45.50 percentage volume of ethyl alcohol. But accused disputed the content in Ext.P4. He also urged that sample was not taken from the seized article and no forwarding note or requisition was prepared by PW1 at the time of seizure. More over sample seal was not found in MO1 cannass. When there is no sample seal provided no credibility can be fastened in Ext.P4 report. **Crl.Appeal. No. 1346 of 2005** **5** ## 7. This Court in **Rajamma v. State of Kerala** ## **[2014(1)KLT 506]** held that: “In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW1 on the sample bottle. 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 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 who is a lady”. ## 8. Earlier a Division Bench of this Court in **Ravi v. State of Kerala [ 2011(3) KLT 353]** held as follows: “The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor **Crl.Appeal. No. 1346 of 2005** **6** which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition.(Vide State of Rajasthan v.Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993(2)KLT 550(SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (Sathi v. State of Kerala (2007(1)KLT SN 57 and Sasidharan v.State of Kerala (2007(1)KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant which eventually found their way into the hands of the Chemical Examiner and that there was no medding or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant”. 9. Analysing the evidence in this case it is clear that no guarantee can be given to Ext.P4 chemical analysis report. No evidence has been produced in this case to show that sample drawn was from MO1 and it was produced before chemical examiners lab in a tamper proof condition. In the absence of such evidence in **7** ## **Crl.Appeal. No. 1346 of 2005** support of the sampling and sealing, the appellant is entitled to get the benefit of doubt. Therefore, the report in Ext.P4 chemical analysis report cannot be applied for conviction in this case. In the result, the conviction and sentence passed by the Additional Sessions Judge (Fast Track)-I, Alappuzha under Section 8(1) & (2) of the Abkari Act is set aside and the accused in acquitted and set at liberty . This appeal is allowed. Sd/- **P.D.RAJAN, Judge** lsn