Rajappan v. State of Kerala and Excise Inspector, Cherpulassery Exise Range

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 CRL.A NO. 893 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 397/2005 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` RAJAPPAN AGED 40 YEARS S/O KESAVAN, KUNEPARAMBU VEEDU, KINASSERI, KALLUVAZHI, SREEKRISHNAPURAM VILLAGE, OTTAPPALAM. ``` ``` BY ADV ABDUL JAWAD K. ``` ## **`RESPONDENT/PETITIONER:`** ``` 1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2EXCISE INSPECTOR CHERPULASSERY EXCISE RANGE. BY PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA. S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 893 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 11.05.2007, passed by the Additional Sessions Judge, Fast Track Court III , Palakkad in S.C No.397 of 2005, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that, on 30.08.2003, the accused was found in possession of 5 litres of illicit arrack at Mangode in Thrikidiri-II Village, Palakkad District. 4. After completion of the investigation, the final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ottappalam. The case was committed to the Sessions Court, Palakkad from where it was made over to the Trial Court. On the appearance of the accused charges were framed against him for the aforesaid offences. The ``` CRL.A NO. 893 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MOs 1 and 2. 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 the arguments addressed from both sides, found that the accused is guilty of offence under Section 8 (2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1 lakh. The accused was acquitted of the offence under Section 55(a) of the Act. ``` CRL.A NO. 893 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 7. Heard Sri.K.Abdul Jawad, the learned counsel appearing for the appellant/accused and Smt.Rekha S., the learned senior Public Prosecutor appearing for the respondent. 8. PW3, the Assistant Excise Inspector, Excise Range Office, Cherpulassery was on patrol duty on 30.08.2003. At 6.15 a.m., the excise team led by PW3 reached Mangode junction. The Excise team found the accused riding a bicycle carrying a bag. The excise team stopped the accused and verified the bag in his possession. They found that the bag contained a white can filled with 5 litres of illicit arrack. PW3 arrested the accused and seized the contraband substance as per Ext.P1 seizure mahazar. He collected 300 ml of arrack from the can and sealed the same. PW4, a Preventive Officer attached to Excise Range, Cherpulassery, who had accompanied PW3 in the search and seizure supported the prosecution case. PW5, the Excise Inspector, Excise Range Office, ``` CRL.A NO. 893 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** Cherpulassery completed the investigation and submitted final report. 9. The learned counsel for the appellant/accused contended that, the prosecution failed to establish the link evidence to show that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 10. The learned counsel for the appellant/accused relied on the following circumstances to establish his contentions; a) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. b) The forwarding note does not contain the name of the official with whom the sample was forwarded to the Chemical Examiner's laboratory. ``` CRL.A NO. 893 OF 2007 ``` ..6.. c) The various officials who handled the sample during its transit from the place of occurrence to the Chemical Examiner's Laboratory through the Court were not examined. d) The prosecution has not offered any explanation for the delay in analysis of the sample. 11. Ext.P1, the seizure mahazar, does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature and description of the seal affixed. In **Bhaskaran K. v. State of Kerala and Another** [2020 KHC 5296] and in **Krishnadas v. State of Kerala** [2019 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. It was further held that the nature of the seal used shall be mentioned in the seizure mahazar. ``` CRL.A NO. 893 OF 2007 ``` ..7.. 12. The evidence regarding the nature and description of the seal affixed on the bottles containing the samples 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 regarding the nature and description of the seal stated to have been used by the detecting officer. 13. The learned counsel for the appellant further contended that Ext.P5 forwarding note does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's Laboratory and the learned Magistrate did not mention the date on which he made his initials thereon. This is more relevant, particularly, when the name of the official with whom the sample was sent for analysis is not mentioned. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala (2016 (4) KLT 718)** held thus: ``` CRL.A NO. 893 OF 2007 ``` ..8.. “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 2-82007. 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 ``` CRL.A NO. 893 OF 2007 ``` ..9.. conviction and sentence passed by the courts below cannot be sustained.” (Emphasis supplied) 14. In the instant case, the prosecution has not examined either the Property Clerk of the Court or the Excise Official concerned to prove the tamper-proof despatch of the sample to the laboratory. 15. The sample stated to have been drawn at the place of occurrence was produced before the Court and the same was received by the Junior Superintendent of the Court concerned. The sample remained in the custody of the Property Clerk. Ext.P8 certificate of chemical analysis shows that an Excise Guard by name M.S.Minu, handed over the sample to the Chemical Examiner's Laboratory on 29.09.2003. The sample changed several hands. It remained in the custody of the Junior Superintendent of the Court concerned, the Property Clerk, the Excise official who received the sample from the Court and the official who delivered the same in the Chemical Examiner's Laboratory. None of ``` CRL.A NO. 893 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** these officials were examined to prove the tamper-proof despatch of the sample to the laboratory from the Court. The inevitable consequence of this omission is that the prosecution failed to establish that the sample while in their custody was either changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajastan v. Daulat Ram** [AIR 1980 SC 1314). 15. Yet another aspect that requires consideration is the delay in the analysis of the sample. Ext.P8 certificate of analysis shows that the sample reached the laboratory on 29.09.2003. The sample was analysed only on 21.08.2004. While dealing with the delay in analysis of the sample, this Court in **Krishnadas v. State of** ## **Kerala [** 2019 KHC 191]held thus: “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 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 ``` CRL.A NO. 893 OF 2007 ``` ..11.. 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.” In the instant case, the delay almost a year in analysing the sample remains unexplained. 16. 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 corelated. 17. 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. In the instant case, the prosecution was unable to establish the link connected the accused with the contraband seized and the sample analysed in the ``` CRL.A NO. 893 OF 2007 ``` ..12.. laboratory. The accused is therefore entitled to the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 18. 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** kkj