Rajendran Pillai v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 CRL.A NO. 1605 OF 2007** **AGAINST THE JUDGMENT IN SC 190/2001 OF ADDITIONAL SESSIONS** **JUDGE (ABKARI CASES), KOTTARAKKARA, KOLLAM APPELLANT/ACCUSED:** **RAJENDRAN PILLAI, S/O. KUTTAN PILLAI, KANJIRAMVILA PUTHEN VEEDU, THRIKKANNAMANGAL MURI, KOTTARAKKARA TALUK,, KOTTARAKKARA, KOLLAM.** BY ADV SRI.K.V.ANIL KUMAR **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT. MAYA M.N. (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1605 of 2007 2 **K.BABU, J. ========================= Crl.A No.1605 of 2007** **==========================** Dated this the 2[nd] day of August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 23.8.2007 passed by the Additional Sessions Judge (Abkari Cases), Kottarakkara in S.C.No.190/2001. By the impugned judgment, the accused was convicted of the offence under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 26.5.1999 at 5.30 pm, the accused was found in possession of 4 litres of arrack in a 5 litre black can at Kalluvattamkuzhi on the ThrikkannamangalSadanandapuram road. The offence was detected by a Preventive Officer attached to Excise Range Office, Kottarakkara. 3. After completing investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court I, Crl.A No.1605 of 2007 3 Kottarakkara. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court, (Abkari Cases), Kottarakkara. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6, Exts.P1 to P7 and MO1. 5. 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 learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- under Section 55(a) of the Crl.A No.1605 of 2007 4 Abkari Act. 6. Heard Sri.K.V.Anilkumar, the learned counsel appearing for the appellant/accused and Smt.Maya M.N, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was eventually subjected to analysis at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. 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 10. The Preventive Officer, Excise Range Office, Kottarakkara (PW1) has given evidence that on 26.5.1999 at 5.30 pm while the excise team led by him was on patrol duty along the Crl.A No.1605 of 2007 5 Thrikkannamangal-Sadanandapuram road, the accused was found carrying a jerry can. PW1 inspected the can and found that it contained 4 litres of arrack. The contraband substance was seized from the possession of the accused by PW1 as per Ext.P1 seizure mahazar. The accused was arrested from the spot. PW2, the Excise Guard attached to Excise Range Office, Kottarakkara supported the version of PW1. PW3, another Preventive Officer of the Excise Range Office, Kottarakkara received the contraband substance seized by PW1. The accused was also produced before PW3, who registered Crime No.31/1998 of Kottarakkara Excise Range. The accused and the contraband substance were produced before the court on the next day by PW3. 11. PWs 4 and 5, the independent witnesses, did not support the prosecution case. PW6 conducted investigation and submitted final report against the accused. 12. The learned counsel for the appellant/accused relied on the following circumstances contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused was actually subjected to analysis in the Chemical Examiner’s laboratory: Crl.A No.1605 of 2007 6 a) The detecting officer and other official witnesses have not given evidence as to the nature and description of the seal affixed on the can allegedly possessed by the accused at the scene of occurrence. b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent with regard to the nature of the seal affixed on the can recovered from the scene of occurrence. c) There is no evidence to show that the specimen impression of the seal was provided to the Chemical Examiner's laboratory. d) The prosecution has failed to adduce evidence as to who had drawn sample from the contraband substance produced before the court. 13. The official witnesses, examined to prove the incident proper, have not given evidence with regard to the nature and description of the seal affixed on the jerry can (MO1) allegedly recovered from the possession of the accused. Ext.P1 is also silent regarding the seal affixed on MO1. The specimen of the seal stated to have been affixed on MO1 can has not been produced before the Crl.A No.1605 of 2007 7 court and marked. The detecting officer is expected to give evidence as to the nature of the seal affixed on MO1 can. The nature of the seal used shall also be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court, so as to enable the court to satisfy the genuineness of the case of the prosecution that the contraband allegedly recovered from the place of occurrence reached the court. In the absence of evidence to convince the court regarding the nature and description of the seal affixed on MO1 can, it cannot be said that the prosecution has established that MO1 was produced before the court in a tamper proof condition. In the instant case, admittedly, the sample was not drawn at the scene of occurrence by the detecting officer. Ext.P5 would show that a 5 litre black can containing 4 litres of illicit arrack was produced before the court by PW3. Ext.P7 would show that one sealed bottle containing 150 ml of clear and colourless liquid alleged to be arrack was received in the Chemical Examiner's laboratory on 5.12.1998. PW3 has given evidence that he had submitted a requisition before the Judicial First Class Magistrate Court I, Kottarakkara for sending the sample to the Chemical Examiner's laboratory for analysis. The prosecution has not Crl.A No.1605 of 2007 8 adduced evidence as to who had drawn the sample and on which date. On a careful perusal of the records available, this Court finds that no contemporaneous record showing taking of sample in the court was prepared. There is nothing to show that the learned Magistrate had given direction to the custodian of the property to take a specified quantity of the contraband substance as sample and to forward the same to the Chemical Examiner's laboratory. It appears that on some day between 27.5.1998 and 5.12.1998 somebody might have collected sample from the bulk quantity of the contraband substance produced before the court and forwarded the same to the Chemical Examiner's laboratory. This Court is also in the dark as to whether the specimen impression of the seal had been forwarded to the Chemical Examiner's laboratory for verification. 14. There is also no evidence to show on which date the sample was sent to the Chemical Examiner's laboratory. Ext.P7 certificate of analysis would show that an Excise Guard by name Sri.Shibu Pappachan delivered the sample in the laboratory on 5.12.1998. There is absolutely no evidence to show that the specimen impression of the seal affixed on the bottle containing the Crl.A No.1605 of 2007 9 sample was forwarded to the Chemical Examiner's laboratory. While considering a case in which there was no evidence to convince the court that specimen impression of the seal was forwarded to the Chemical Examiner, 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 appellant”. 15. It is the admitted case of the prosecution that there is lack of evidence as to who had drawn the sample. There is also no evidence to show as to whether the sample sent to the Chemical Examiner's laboratory was the one drawn from the contraband substance contained in MO1. This question becomes more relevant when it is found that during the trial MO1 contained approximately Crl.A No.1605 of 2007 10 4 litres of arrack, as is evident from the appendix of the judgment. The court below has recorded the finding that Ext.P6 itself would reveal that the sample was collected from MO1 jerry can. Ext.P6 is a requisition to forward the material object to the Chemical Examiner. There is nothing to show that Ext.P6 was received by any of the officials in the court. Ext.P6 lacks initials of any of the officials of the court as well as that of the learned Magistrate. I am unable to find anything in Ext.P6 to see that the sample was collected from MO1 jerry can. There is absolutely no evidence to show that the sample tested in the Chemical Examiner's laboratory was the one drawn from MO1 can. The sample remained in the custody of the official concerned of the court, the excise official who received the sample from the court and Sri.Shibu Pappachan who delivered the same to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody, the seal was not tampered with. The inevitable conclusion is that the prosecution failed to rule out the possibilities of the sample being changed or tampered with. The prosecution ought to have examined the custodian of the property in the court (property clerk) and the excise official concerned 11 Crl.A No.1605 of 2007 including Sri.Shibu Pappachan to rule out the possibility of sample being changed or tampered with during the period in which it remained in their custody. (See: **State of Rajasthan v. Daulat** ## **Ram [AIR(1980)SC 1314].** 16. It was also imperative on the part of the prosecution to give evidence as to who had drawn the sample and also as to whether the sample was drawn as per the directions of the learned Magistrate. 17. 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 corelated. 24. 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 connecting the accused with the contraband Crl.A No.1605 of 2007 12 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 prosecution failed to establish the charge against the accused. The conviction entered and sentence passed by the trial court, ignoring these vital aspects, cannot be sustained. The appellant/accused is therefore not guilty of the offence punishable under Sections 55(a) of the Abkari Act. He is acquitted of the charge. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** **ab**