Rajeev v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943** **CRL.A NO. 777 OF 2006** **AGAINST THE JUDGMENT IN SC 60/2000 OF ADDITIONAL SESSIONS** **JUDGE, FAST TRACK COURT (ADHOC)-IV, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **RAJEEV, S/O. MADHAVAN, PADINJATTATHIL VEEDU, KALAMCHAL DESOM, VAMANAPURAM VILLAGE.** **BY ADV SRI.J.JAYAKUMAR** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 777 OF 2006** 2 ## **K. BABU J.** **------------------------------------** ## **Crl.A.No.777 of 2006** **------------------------------------** Dated this the 11[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 21.03.2006, passed by the Additional Sessions Judge, Fast Track Court, (Adhoc) IV, Thiruvananthapuram, in SC.No.60/2000. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 02.06.1999 at about 01.00 p.m., the Sub Inspector of Police, Venjaramoodu, found the accused at Anachal in possession of 62 packets, each containing 150 ml of arrack. 4. Final report was submitted against the accused for the offences punishable under Sections 55(a), 55(b) **CRL.A NO. 777 OF 2006** 3 and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Attingal. 5. The case was committed to the Sessions Court, Thiruvananthapuram, from where it was made over to the Trial Court. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a), 55(b) and 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P9 and Mos.1 to 4. 7. 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 **CRL.A NO. 777 OF 2006** 4 adduce evidence, if any, he may have in support thereof. The learned 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 two years and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.J.Jayakumar, the learned counsel appearing for the appellant and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence: - (a) The inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. (b) The prosecution has not succeeded in establishing that the contraband substance **CRL.A NO. 777 OF 2006** **==> picture [7 x 9] intentionally omitted <==** allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 12. PW5, the Sub Inspector of Police, Venjaramoodu Police Station, the detecting officer, gave evidence that on 02.06.1999 at about 01.00 p.m., on getting reliable information that the accused was engaged in the sale of illicit arrack at Anachal, the Police team led by him proceeded to there and arrested the accused along with the contraband substances. PW5 seized 62 packets of arrack, each containing 150 ml, from the possession of **CRL.A NO. 777 OF 2006** 6 the accused. He also seized 1 plastic bucket, 1 glass tumbler and an amount of Rs.330/-. PW5 prepared Ext.P1 seizure mahazar. 13. PWs. 1 and 2, the independent witnesses, did not support the prosecution case. 14. PWs3 and 4, the two Police Constables who had accompanied PW5 in the search and seizure have given evidence in support of the version given by PW5. 15. The learned counsel for the appellant/accused contended that the prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the court. The alleged seizure was effected on 02.06.1999. Exts.P6 and P7, the lists of properties sent to the Magistrate would show that the properties were produced before the court only on 05.06.1999. The detecting officer has not given any satisfactory explanation for the delay in the production of properties. **CRL.A NO. 777 OF 2006** 7 16. On the question of delay in the production of the properties, the Division Bench of this Court in **Ravi** **v. State of Kerala & another** [2011 (3) KHC 121] held thus: “1.It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 17. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case there is no satisfactory explanation for the delay in the production of the properties before the court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. **CRL.A NO. 777 OF 2006** 8 18. Learned counsel for the accused further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 19. The learned counsel relied on the following circumstances to substantiate his contentions: - (a) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used by the detecting officer. - (b) No sample was drawn at the place of occurrence by the detecting officer. - (c) There is no evidence to show that the specimen impression of the seal had been produced before the court and forwarded to **CRL.A NO. 777 OF 2006** 9 the Chemical Examiner's laboratory. 20. The case of the prosecution is that 62 packets, each containing 150 ml of arrack, were seized from the possession of the accused. Those 62 packets, allegedly recovered from the scene of occurrence, were produced before the court. 21. In Ext.P1 seizure mahazar there is no mention that the contraband articles seized from the place of occurrence were sealed at the scene of occurrence. Admittedly, no sample was drawn at the scene of occurrence by the detecting officer. The detecting officer who effected the seizure has given evidence that he had sealed the contraband substance. He even narrated the nature and description of the seal used, in his evidence. However Ext.P1, the contemporaneous document, does not contain the act of sealing by the detecting officer. There is also no mention of the nature and description of the seal stated to have been affixed. **CRL.A NO. 777 OF 2006** 10 Hence the credibility of the version of the detecting officer to the effect that he had sealed the contraband substance at the scene of occurrence is doubtful. 22. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and **Krishnadas v. State of Kerala** (2019 KHC 191), this Court held that the detecting officer has to give evidence as to the nature of the seal affixed on the contraband substance. The nature of the seal used shall be mentioned in the seizure mahazar. It was further held that the specimen of the seal shall be produced in the court so as to enable the court to satisfy the genuineness of the sample produced in the court. 23. Another vital aspect to be considered is that this Court is kept in the dark as to who had taken the sample and sealed the same. In Ext.P6 there is a submission by the clerk concerned to the learned magistrate seeking permission to return item No.1 therein (62 packets) after taking the sample for Chemical **CRL.A NO. 777 OF 2006** 11 Examination. This Court is unable to find the order passed by the learned magistrate on the basis of the above submission. It appears that somebody might have taken 2 packets from the bulk quantity available in the court and forwarded to the Chemical Examiner's laboratory. There is nothing on record to see that any specific direction was issued by the learned Magistrate in this regard. No proceedings were seen issued by the learned Magistrate directing taking of sample.. 24. Ext.P9, certificate of chemical analysis, would show that one sealed packet containing 2 packets, each containing 150 ml of clear and coloureless liquid alleged to be arrack, reached the laboratory. There is no evidence to show as to the date on which these packets were taken as sample. It is further seen that Ext.P9 certificate of Chemical analysis does not contain the certification that the packets, containing the liquid alleged to be arrack, were sealed. Reference is only with **CRL.A NO. 777 OF 2006** 12 regard to the seal on the packet by which the 2 packets containing arrack were covered. 25. There is no evidence to show that the specimen impression of the seal affixed on the said packet was forwarded to the Chemical Examiner. Copy of the forwarding note, marked as Ext.P8, does not contain the specimen impression of the seal used. ## 26. In **Rajamma v. State of Kerala** [2014 (1) KLT ## 506], this Court held thus: “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 in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal 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 **CRL.A NO. 777 OF 2006** 13 appellant”. 27. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P9 chemical analysis report. 28. It has come out in evidence that the 2 packets containing the liquid alleged to be arrack and treated as samples remained in the custody of the property clerk of the court, the official of the court who had taken the packets as sample and the Police official who received the same from the court and delivered to the Chemical Examiner's laboratory. Prosecution failed to examine these officials to establish that the packets allegedly recovered from the possession of the accused were sent to the laboratory in a tamper proof condition. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the **CRL.A NO. 777 OF 2006** 14 sample being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. 29. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 30. 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. (see: **Sathi v. State of Kerala** [2007(1) KHC 778]). 31. In the instant case, the prosecution was unable to establish the link connecting the accused with the **CRL.A NO. 777 OF 2006** **==> picture [13 x 9] intentionally omitted <==** 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. 32. 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 is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS