Rajesh Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** ## **WEDNESDAY, THE 01ST DAY OF JULY 2020 / 10TH ASHADHA, 1942** ## **CRL.A.No.1350 OF 2005** **AGAINST THE JUDGMENT IN SC NO. 392/2004 DATED 12-07-2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-1, PALAKKAD** ## **APPELLANT/ACCUSED:** **RAJESH KUMAR, S/O. KANDAN, THAZHATHETHIL HOUSE, CHERUMPALA, MANNUR, PALAKKAD.** **BY ADV. SRI.P.VIJAYA BHANU (SR.)** **BY ADV. SRI.P.M.RAFIQ BY ADV. SRI.M.REVIKRISHNAN BY ADV. SRI.VIPIN NARAYAN BY ADV. SRI.AJEESH K.SASI BY ADV. SRI.V.C.SARATH BY ADV. SMT.POOJA PANKAJ BY ADV. SRUTHY N. BHAT BY ADV. SHRI.ABEL TOM BENNY** ## **RESPONDENTS/COMPLAINANT:** **1 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** - **2 EXCISE INSPECTOR PARALI EXCISE RANGE.** **R1 & R2 BY SR.PP. SRI.B.JAYASURYA** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01-07-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL No.1350 of 2005 2** ## **JUDGMENT** The above appeal is filed by the accused in Sessions Case No.392 of 2004 on the file of the Additional Sessions Judge, Fast Track Court-1, Palakkad. 2. The Excise Inspector, Excise Range Office, Parali filed a charge sheet against the appellant alleging offences punishable under Section 55(a) of the Abkari Act 3. The prosecution case is that, on 29.8.2001 at 1.30 p.m., the accused was found in possession of 4 litres of arrack in a can at Cherumpala bus stop, Mannur village. 4. On appearance of the accused, the trial court framed charge under Section 55(a) of the Abkari Act. 5. To substantiate the case, PW1 to PW5 are examined on the side of the prosecution. Exhibits P1 to P6 are the documents marked on the side of the prosecution. MO1 is the material object. **CRL.APPEAL No.1350 of 2005 3** 6. After going through the evidence and documents, the trial court found that, the accused committed the offence under Section 55(a) of the Abkari Act. He is sentenced to undergo Simple imprisonment for one year and to pay a fine of Rs.1,00,000/-. In default of payment of fine, he is directed to undergo Simple imprisonment for a further period of three months. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 7. Heard the learned counsel for the appellant and the learned Public Prosecutor. 8. The learned counsel for the appellant submitted that, even if the entire allegations are accepted, no offence under Section 55(a) is attracted in this case. The Counsel also submitted that, Ext.P4 forwarding note is silent about the person through whom the sample was forwarded to the Analyst. The Counsel further submitted that, no property list is marked in this case. 9. The learned Public Prosecutor submitted that, the evidence of PW1 to PW5 and Exhibits ## **CRL.APPEAL No.1350 of 2005 4** produced in this case proved the commission of offence by the accused under Section 55(a) of the Abkari Act. The trial court, after considering all the aspects of the case, found that, the accused committed the said offence. There is nothing to interfere with the well considered judgment of the trial court. 10. The point for consideration in this case is whether the accused committed the offence under Section 55(a) of the Abkari Act. 11. A perusal of Ext.P4 forwarding note will show that, it is silent with regard to the name of the person with whom the sample was sent. Further, the seizure of the contraband article in this case was on 29.8.2001. The Analyst received the sample on 4.10.2001. It is the duty of the prosecution to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst. 12. As stated above, in Ext.P4 forwarding note, the name of the person who took the sample to the ## **CRL.APPEAL No.1350 of 2005 5** Chemical Examiner is not mentioned. If that be so, the benefit of doubt will go to the accused. This Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718] held as follows: _“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_ **CRL.APPEAL No.1350 of 2005 6** _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._ 13. Further, the seizure of the contraband articles in this case was on 29.8.2001. The Analyst received the sample on 4.10.2001. In **Madhavan Vs. State of Kerala** (2019 (4) KLT 18), this Court observed like this: ## **CRL.APPEAL No.1350 of 2005 7** _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the sample till the same reached the hands of the chemical examiner._ _Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ In the light of the above authoritative judgments, it is explicit that, it is the duty of the prosecution to prove all the links starting from seizure of the contraband articles till it reaches in the hands of the Analyst. Here in this case, the delay occurred in reaching the sample in the hands of the Analyst is fatal to the prosecution case in the light of the ## **CRL.APPEAL No.1350 of 2005 8** above judgments. The benefit of doubt in this case will go to the accused on this ground also. 14. Moreover, the property list is also not marked in this case. Usually, the contraband article seized will be produced before the Magistrate Court with a property list. The trial court can gather the date on which the contraband reached the court from the entries in the property list. There is no property list produced in this case. In such circumstances, the court is handicapped in finding out the date on which the property reached the court. Simply because the police/excise witnesses deposed that, the property list reached in the court on such and such date, unless the documentary evidence like property list is there to verify, the oral evidence adduced by those witnesses can't be believed. In this case, the property list is not marked. Moreover, in Ext.P5 Analyst report, it is noted that, on 4.10.2001, the Analyst received the sample through an Excise Guard. There is no evidence before the court to find out when exactly the property reached in the **CRL.APPEAL No.1350 of 2005 9** court. In other words, after the alleged seizure in this case on 29.8.2001, there is no explanation from the prosecution regarding the possession of the contraband articles till 4.10.2001, when the Analyst received the sample. In such circumstances, on this ground also the accused is entitled the benefit of doubt. 15. In the light of the above discussions, I think, the accused is entitled the benefit of doubt. Hence, this Criminal Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 12.7.2005 in S.C.No.392 of 2004 of the Additional Sessions Judge, Fast Track Court-1, Palakkad, are set aside. The appellant is set at liberty. Bail bond, if any, executed by the appellant, is cancelled. ## **Sd/-** ## **P.V.KUNHIKRISHNAN** ## **pkk** ## **JUDGE**