Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 16TH DAY OF JUNE 2020 / 26TH JYAISHTA, 1942** ## **CRL.A.No.1297 OF 2005** **AGAINST THE JUDGMENT IN SC 174/2002 DATED 07-07-2005 OF ADDITIONAL DISTRICT & SESSIONS (ADHOC) FAST TRACK COURT -I, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **RAJAN** **S/O KOCHURAMAN, PUTHEN VILAYIL VEEDU, KONNIPPARA,, KONNI VILLAGE, KOZHANCHERRY TALUK.** **BY ADV. SRI.C.K.SAJEEV** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** ## **R1 BY SANTHOSH PETER PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2020, THE COURT ON 16-06-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1297 OF 2005** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 1297 of 2005** ----------------------------------------------------- Dated this the 16[th] day of June, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No.174/2002 on the file of the Court of the Additional Sessions Judge, Pathanamthitta. 2. The prosecution case is that, on 12.08.1999, at about 18:15 hours, at the road near the house of the appellant/accused, PW4 Sub Inspector saw the accused engaged in selling arrack, by pouring arrack from a can into a glass. 3. The Sub Inspector arrested the accused, seized the can and took sample from it and returned to the police station and registered Ext.P4 first information report. PW4 himself conducted the investigation of the case. After completing the investigation, he filed final report against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. 4. The trial court framed charge against the appellant for the **CRL.A.No.1297 OF 2005** **3** offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused/appellant pleaded not guilty to the offence and claimed to be tried. 5. The prosecution examined PW1 to PW4 and marked Exts.P1 to P7 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 6. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of two years. 7. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 8. Heard learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 9. PW4 is the Sub Inspector who detected the offence. He has given evidence with regard to the occurrence in detail. PW3 is the police constable who was in the police party led by PW4. His evidence corroborates the testimony of PW4 regarding the occurrence. **CRL.A.No.1297 OF 2005** **4** 10. PW1 and PW2 are the independent witnesses examined by the prosecution to prove the occurrence. They did not support the prosecution case. They denied having seen the incident. 11. Ext.P7 is the chemical examination report received in respect of the sample which was sent for analysis. It shows that the sample of liquid contained 34.12% by volume of ethyl alcohol. 12. Learned counsel for the appellant contended that the detection as well as the investigation of the offence was conducted by the same police officer and final report was also filed by the same officer and it has caused prejudice to the accused. Learned counsel for the appellant also contended that the evidence adduced by the prosecution is not sufficient to find that the very same sample allegedly drawn from the liquid allegedly seized from the possession of the accused was sent for analysis. 13. The recital in Ext.P3 seizure mahazar is that PW4 Sub Inspector seized the can containing the liquid and took sample of the liquid in a bottle and sealed the sample bottle and also the can containing the remaining liquid. The recital in Ext.P4 first information report is also to that effect. 14. However, when gave evidence before the court, PW3 and PW4 would state that label was affixed on the sample bottle and the **CRL.A.No.1297 OF 2005** **5** can. PW3 and PW4 also identified MO1 in the court as the can seized from the possession of the accused by verifying the label affixed on it, bearing the signature of PW4 and the witnesses. But, Ext.P3 seizure mahazar as well as Ext.P4 first information report does not contain any recital that any label bearing the signature of any person was affixed on the can or the sample bottle. In such circumstances, identification of MO1 in the court by PW3 and PW4 as the can seized from the possession of the accused cannot be accepted as reliable and trustworthy. 15. As noticed earlier, Ext.P3 seizure mahazar and Ext.P4 first information report contain a recital that seal was affixed on the sample bottle and the can at the spot of the occurrence. Ext.P6 is the property list prepared by PW4 for producing the material objects before the court. The description of the sample bottle and the can given in Ext.P6 property list does not show that the can or the sample bottle was sealed or that there was any seal on them. The description of the can and sample bottle given in Ext.P6 property list also does not show that there was any label on them bearing the signature of the accused or the witnesses or PW4. Therefore, there is no assurance that the very same sample which was allegedly drawn at the spot of the occurrence from the can containing liquid allegedly seized from the possession of **CRL.A.No.1297 OF 2005** **6** the accused was produced before the court as per Ext.P6 property list. 16. There is another lacuna in the prosecution case. PW4 has given evidence that he had prepared and submitted the requisition for sending the sample for analysis. The forwarding note prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 17. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be **CRL.A.No.1297 OF 2005** **7** conclusive proof by itself. The sample seized and that tested have to be co-related". 18. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 19. The arrest memo and the arrest intimation allegedly prepared by PW4 at the spot of the occurrence were not produced before the court and tendered in evidence. This also creates suspicion as to whether the accused was arrested from the spot of the occurrence alleged by the prosecution. 20. PW4 Sub Inspector has detected the offence. He conducted **CRL.A.No.1297 OF 2005** **8** the investigation of the case also. He also filed final report against the accused. The arrest memo and the arrest intimation allegedly prepared by him were not produced before the court. The material objects produced before the court do not give any assurance that they were the very same properties allegedly seized from the possession of the accused as per Ext.P3 mahazar. In these circumstances, conducting of the investigation by the same officer who had detected the offence and filing of final report by the same officer, has caused prejudice to the accused. 21. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the appellant/accused is entitled to be acquitted. 22. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. **Sd/-R. NARAYANA PISHARADI JUDGE** **lsn**