Rajendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944 CRL.A NO. 983 OF 2008** **AGAINST THE JUDGMENT DATED 16.05.2008 OF THE ADDITIONAL SESSIONS COURT (ADHOC), THODUPUZHA IN SC 379/2006** ## **APPELLANT:** ## **RAJENDRAN** **S/O BHARATHDAS, PAVILAYIL HOUSE, PAMPADUMPARA VILLAGE, UDUMBANCHOLA TALUK, IDUKKI DISTRICT.** ## **BY ADV SRI.PAULY MATHEW MURICKEN** ## **RESPONDENT:** ## **STATE OF KERALA** **PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **SMT.REKHA – GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.983 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.983 of 2008** --------------------------------------- Dated this the 23[rd] day of November, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 16.05.2008, passed by the Third Additional Sessions Court (Adhoc-1), Thodupuzha in S.C.No.379/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.08.2007 at 1.30 p.m., the accused was found possessing 8 litres of arrack in a 10 litre can at Pampadumpara in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8 (2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from Crl.A No.983 of 2008 3 where it was made over to the Trial Court. On the 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, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6 and MO 1. 5. After the closure of the prosecution evidence, 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 evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri.Pauly Mathew Muricken, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.983 of 2008 4 7. The judgment of conviction and sentence is challenged on the following grounds : a) The prosecution failed to establish the identity of the person who was allegedly carrying the contraband substance at the place of occurrence. b) The prosecution failed to show that the contraband substance allegedly seized from the place of occurrence was subjected to Chemical Analysis. 8. The alleged seizure was effected by Excise Range Inspector, Excise Range Office, Udumbanchola (PW3) on 07.08.2003. 9. The prosecution case is that on seeing the Excise party the accused ran away from the scene of occurrence. In Ext.P2 mahazar, the contemporaneous document prepared at the scene of occurrence, it is specifically narrated that the detecting officer enquired about the whereabouts of the person who left the scene from the people who reside near the place of occurrence. Ext.P2 does not contain the nature and description of the person who was carrying the contraband substance. There is no mention Crl.A No.983 of 2008 5 regarding any of the identifying features of the person who ran away from the scene. PW3 identified the accused in the box in 2008 after a long lapse of 5 years. PW2 stated for the first time in the Court that he had previous acquaintance with the accused. The evidence of PW3 regarding the identification of the accused is an improvement made during the course of giving evidence. 10. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v.** Crl.A No.983 of 2008 6 **State of AP [AIR 1983 (SC) 367]** . So, on this ground alone the prosecution must fail. 11. In the present case there was no test identification parade. The evidence on the identification of the accused by PW3 is not admissible. 12. The learned counsel for the appellant further contended that the prosecution has not succeeded in proving that the contraband allegedly seized from the scene of occurrence eventually reached the Chemical Examiner's Laboratory. The learned counsel relied on **Kumaran v. State of Kerala [2016** **(4) KLT 718]** to substantiate his contentions. 13. Ext.P5, the forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. The learned Magistrate who counter-signed Ext.P5 has not mentioned the date on which the sample was forwarded to the laboratory. While considering a similar fact situation this Court in **Kumaran v. State of Kerala [2016 (4) KLT 718]** , held thus: - _“7. There is yet another reason to grant benefit of doubt to the revision_ Crl.A No.983 of 2008 7 _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 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 conviction and sentence passed by the courts below cannot be sustained.”_ 14. In the present case neither property clerk of the Court nor the Excise Official who delivered the sample to the laboratory was examined as a witness. The prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. The sample was produced before the Court on Crl.A No.983 of 2008 8 08.08.2003, which was received by the Junior Superintendent of the Court. The sample was delivered to the laboratory by an Excise Guard by name Binoy K.J. Non-examination of the officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. Relying on **State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314]** this Court in **Sasidharan v. State of Kerala [2007 (1) KHC 275]** held that in cases where sample changed several hands the prosecution can succeed only if it is established that it ultimately reached the hands of the chemical examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquor allegedly seized from the accused. In the instant case, due to the non-examination of the above-referred officials who handled the sample, the prosecution failed to establish that the sample ultimately reached the hands of the Chemical Examiner in a tamper-proof condition and that it was the very same sample which was drawn from the arrack allegedly seized from the accused. Crl.A No.983 of 2008 9 15. As the prosecution failed to show that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 16. The resultant conclusion is that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. The conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** AP