Rajappan @ Vava v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **CRL.A NO. 2089 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 597/2003 OF ADDITIONAL DISTRICT** **COURT (ADHOC), MAVELIKKARA, ALAPPUZHA** ## **APPELLANT/ACCUSED:** RAJAPPAN @ VAVA AGED 50 YEARS S/O VASU, VISAKH BHAVANATHIL VEEDU, PERINGALA MURI, MULAKUZHA VILLAGE. BY ADVS. C.S.DIAS AJITH MURALI R.BEENA **RESPONDENT:** STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2089 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2089 of 2007** --------------------------------------Dated this the 26[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 22-10-2007, passed by the learned Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C No.597/2003, 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 05-10-2000 around 1.30 p.m the accused was found in possession of 1 ½ litres of illicit arrack in a plastic bottle at Mulakuzha in Chengannur. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Chengannur. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Additional Sessions Court Fast Track (Adhoc), Mavelikkara. On 3 Crl.A No.2089 of 2007 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 levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MO1. 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 is 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 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 term of 3 ½ years and to pay a fine of Rs.1 Lakh under section 8(2) of the Abkari Act. Crl.A No.2089 of 2007 4 7. Heard Smt.R.Beena, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence, eventually reached the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW1, the Excise Inspector, Excise Range Office, Chengannur, detected the offence. PW1 gave evidence that on 05-102000 around 1.30 p.m while the Excise team led by him was on patrol duty through Kanjirathumoodu-Karakkadu road, the accused was found in possession of 1 ½ litres of illicit arrack in front of the shop Crl.A No.2089 of 2007 5 run by one Pavithran. PW1 seized the contraband substance from the possession of the accused and collected 200 ml of arrack from it in a 375 ml bottle as sample. PW1 prepared Ext.P1 seizure mahazar. 12. PW5, the Excise guard who had accompanied PW1 in the search and seizure, supported the prosecution version. 13. PWs 2 and 3, the independent witnesses, did not support the prosecution case. 14. PW4, the Excise Inspector of Chengannur Excise Range conducted investigation and submitted final report. 15. The learned counsel for the appellant/accused submitted that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was actually subjected to analysis at the Chemical Examiner’s laboratory. 16. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: - (i) PW1, the detecting officer and the other police official who had accompanied him (PW5), have not given evidence as to the specific nature and description of the Crl.A No.2089 of 2007 6 seal affixed on the bottle containing the sample. - (ii) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal said to have been affixed on the bottle containing the sample. - (iii) The copy of the forwarding note is silent regarding the person with whom the sample was entrusted for delivering the same to the Chemical Examiner’s laboratory. 17. The oral evidence of PWs 1 and 5 is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. Exhibit P1, seizure mahazar, is also silent regarding the nature and description of the seal affixed on the bottle containing the sample. 18. The detecting officer who has drawn the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The detecting officer is expected to tell the specific description of the seal said to have been affixed on the bottle containing the sample [Vide: _**Bhaskaran K. v. State of Kerala and**_ Crl.A No.2089 of 2007 7 _**another**_ (2020 KHC 5296)]. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed by the detecting officer at the time when sample was drawn. 19. Exhibit P7, the copy of the forwarding note, is silent with regard to the name of the person with whom the sample was sent for analysis. The entry against the name of the Excise guard through whom the sample was received in the laboratory is seen corrected in Ext.P8 certificate of analysis. It is not discernible as to why the space meant for writing the name of the Excise guard, with whom the sample was sent, remained vacant in Ext.P7, copy of the forwarding note. The date on which the sample was forwarded to the Chemical Examiner’s laboratory is also not mentioned in Ext.P7. It is pertinent to note that the learned Magistrate has not countersigned in Ext.P7. In such a situation, the prosecution ought to have examined the thondi clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. While dealing with a similar fact situation this Court in _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718], held thus: Crl.A No.2089 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 2.8.2007. 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 tamperproof 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.”_ 20. It is the admitted case of the prosecution that the sample changed several hands before reaching the Chemical Examiner’s laboratory. The sample remained in the custody of the official concerned of the court, the Excise official who received the sample from the court and the Excise guard who delivered the sample to the Crl.A No.2089 of 2007 9 laboratory. None of the 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**_ [AIR (1980) SC 1314]. 21. 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. 22. In the instant case, the prosecution failed to establish the tamper proof despatch of the sample from the court to the laboratory and hence no evidentiary value can be given to Ext.P8 certificate of chemical analysis. 23. 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 Crl.A No.2089 of 2007 10 to have been seized from the possession of the accused {Vide : _**State of**_ _**Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 24. 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 benefit of doubt arising from the absence of link evidence as discussed above. 25. 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