Rajendran v. State

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 02ND DAY OF JUNE 2020 / 12TH JYAISHTA, 1942** ## **CRL.A.No.1713 OF 2007** **AGAINST THE JUDGMENT IN SC 505/2007 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT - II, ALAPPUZHA DATED 10.09.2007** ## **APPELLANT/ACCUSED:** **RAJENDRAN, S/O. KUNJUKRISHNAN, EVOORCHIRAYIL, WARD NO.8, ARATTUPUZHA PANCHAYATH,, ALAPPUZHA.** **BY ADVS. SRI.S.SANAL KUMAR SMT.BHAVANA VELAYUDHAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **SRI C K PRASAD-PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29-052020, THE COURT ON 02-06-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1713/2007 2 **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1713 of 2007 -----------------------------------------Dated this the 2[nd] day of June, 2020 ## **J U D G M E N T** The appellant is the accused. The appeal is filed by him assailing the verdict of guilty, conviction and sentence under Section 8(1) read with 8(2) of the Abkari Act, 1077. 2. The prosecution case is that, on 24.11.2001, at about 10.30 hours, at the road in front of the shop 'Shobha Corner' in Arattupuzha Panchayat, PW1 Excise Inspector found the accused having in his possession a bottle containing one litre of arrack. 3. The trial court framed charge against the appellant for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The appellant pleaded not guilty to the charge. Thereupon, prosecution examined PW1 to PW5 and marked Exts.P1 to P7 documents and material objects MO1 and MO2. Crl.A.No.1713/2007 3 4. During the examination under Section 313 Cr.P.C, the appellant took up the plea that it is a false case. DW1 and DW2 were examined on the side of the appellant. 5. After appreciating the evidence adduced in the case, the trial court found the appellant guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder. The trial court sentenced the appellant to undergo rigorous imprisonment for a period of one year 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 months. 6. Heard learned counsel for the appellant and the learned Public Prosecutor. Perused the records. 7. PW1 is the Excise Inspector who detected the offence. PW2 is the Preventive Officer who was in the excise party led by PW1. They have given evidence regarding the occurrence. There is no striking improbability or material contradiction or discrepancy in the evidence of PW1 and PW2 regarding the seizure of a bottle containing some liquid from the possession of the appellant as per Ext.P1 mahazar. The fact that the Crl.A.No.1713/2007 4 independent witness, who was examined by the prosecution as PW3, did not support the prosecution case is not a sufficient ground to discard their evidence in that regard. 8. The plea of the appellant is that the case was foisted upon him by the excise officers for the reason that he refused to be a witness in an excise case. DW1 was examined by the appellant to prove this plea. She is none other than his wife. She has given evidence that her husband was taken away from his house by the excise officers. The interested testimony of DW1 is not sufficient to disbelieve the prosecution case especially when there is no material to find that the excise officers had no reason to be inimical towards the appellant so as to falsely implicate him in a case of this nature. 9. DW2 is the owner of the shop by name 'Sobha Corner'. He was examined by the appellant to prove that the evidence given by PW1 and PW2 regarding the location of his shop is not correct. Assuming that the excise officers have committed a mistake in stating the location of that shop, it is not sufficient to discard their evidence regarding the incident. Crl.A.No.1713/2007 5 10. Ext.P4 is the chemical analysis report in respect of the sample of liquid which was sent to the laboratory for examination. It shows that ethyl alcohol was detected in the sample. 11. However, there is no evidence to find that the sample, which was analysed under Ext.P4 report, was the very same sample taken from the bottle seized from the possession of the accused/appellant. 12. There is a specific recital in Ext.P1 mahazar that PW1 sealed the sample bottle and also affixed label bearing his signature and the signature of the witnesses and the accused on it. PW1 and PW2 have given evidence also to that effect. PW1 also gave evidence that he produced the accused and the records and the material objects at the excise range office concerned. PW5 Excise Officer has given evidence that he received the records and the material objects and the accused from PW1 and registered Ext.P5 crime and occurrence report. He also deposed that he prepared Ext.P6 property list and produced the properties before the court. The description of the sample given in Ext.P5 Crl.A.No.1713/2007 6 report does not show that there was any seal or label on it. At the same time, the description of the sample given in Ext.P6 property list shows that there was seal on the sample bottle. It indicates that the seal was affixed on the sample bottle not at the spot of the occurrence but at the excise range office. Ext.P6 property list would show that there was no label bearing the signature of the accused on the sample when it was produced in the court. Absence of any such label on the bottle containing the sample which was produced before the court creates suspicion as to whether the very same sample taken at the spot of the occurrence was produced in the court. 13. Ext.P7 is the copy of the forwarding note prepared by PW5 Excise Inspector for sending the sample for chemical analysis. The description of the bottle containing the sample given in Ext.P7 does not show that there was any seal or label bearing the signature of the accused on it. This also creates doubt as to whether the very same sample drawn from the liquid contained in the bottle seized from the possession of the accused was sent for chemical analysis. Crl.A.No.1713/2007 7 ## 14. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , it has been 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 conclusive proof by itself. The sample seized and that tested have to be co-related”._ 15. In order to establish the prosecution case against the petitioner/accused, it is necessary to prove that the very same sample which was drawn from the liquid seized from his possession was forwarded to the laboratory for examination and analysed there. The prosecution has to prove that the very same sample drawn from the liquid which was seized from the possession of the accused ultimately reached the hands of the chemical examiner in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the liquid seized from the possession of the accused. If this is not proved to the satisfaction of the court, then it cannot be said that the prosecution has succeeded in Crl.A.No.1713/2007 8 bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused. 16. The abovementioned aspects were not considered by the trial court while appreciating the prosecution evidence. In the said circumstances, the order of conviction and sentence passed against the appellant cannot be sustained. 17. In the result, the appeal is allowed. The order of conviction and sentence passed against the appellant by the trial court is set aside. The appellant is found not guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and he is acquitted. The bail bond executed by the appellant is cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant, shall be refunded to him. (sd/-) **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**