Raju @ Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **FRIDAY, THE 11TH DAY OF MARCH 2016/21ST PHALGUNA, 1937** **CRL.A.No. 2140 of 2004 ( )** **--------------------------AGAINST THE JUDGMENT IN SC 480/1999 of ADDL. DISTRICT AND SESSIONS JUDGE (ADHOC) COURT-I, KOLLAM DATED 30-11-2004 (C.P.18/98 OF JUDICIAL MAGISTRATE I CLASS-I, KOLLAM)** **APPELLANT(S)/ACCUSED:: --------------------RAJU @ RAJAN, S/O.JOSEPH, PARICHERIVILA VEEDU, THEKKE MURI, EAST KALLADA VILLAGE.** **BY ADV. SRI.B.MOHANLAL** **RESPONDENT(S)/COMPLAINANT:: --------------------------STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. DHANESH MATHEW MANJOORAN.** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-03-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **acd** ## **P.D. RAJAN, J.** ------------------------------------------Crl.Appeal No.2140 of 2004 ---------------------------------------------Dated this the 11[th] day of March, 2016 ## **JUDGMENT** This appeal is preferred by the accused against the conviction and sentence in S.C.No.480/1999 of Additional District & Sessions Judge (Adhoc) Court-I, Kollam. The charge against the accused is that on 18.11.1997 at 10.30 a.m., he was found in possession of three litres of arrack in a black cannas on the side of the pathway leading to Paricheri culvert from Arumurikada junction in Thekkemuri of East Kallada Village by the Sub Inspector of Police, East Kallada. The accused was arrested and the contraband articles were seized, reaching at the Police Station, he registered a crime. After completing investigation, Sub Inspector of Police laid charge before Judicial First Class Magistrate-I, Kollam from there it was committed to Crl. Appeal No.2140/2004 2 Sessions Court, Kollam. 2. During trial, prosecution examined PW1 to PW4 and marked Exts.P1 to P4. MO1 and MO2 were admitted as material objects. The incriminating circumstances brought out in evidence were denied by the accused while questioning him under Section 313 Cr.P.C. He did not adduce any defence evidence. The learned Additional Sessions Judge convicted the appellant and sentenced to rigorous imprisonment for two years and fine of 1 lakh, in default of payment of fine,₹ simple imprisonment for six monhts. Being aggrieved by that, the accused preferred this appeal. 3. The learned counsel appearing for the appellant contended that there is no independent evidence to prove the alleged seizure. The detecting officer violated the mandatory provisions of the labelling and sampling in this case. There is also a delay of 22 months in producing the seized articles before Court. In the circumstances, the Crl. Appeal No.2140/2004 3 conviction on the basis of chemical analysis report alone is unsustainable in law. 4. The offence was detected by the Sub Inspector of Police, East Kallada, who was examined in the trial Court as PW4. His evidence shows tha on 18.11.1997, while he was conducting law and order patrol duty and reaching at Kochupilamoodu junction, he got information that the appellant was conducting sale of arrack. When he reached at the place of occurrence, the appellant was found carrying MO1 and MO2. He insepcted MO1 and detected arrack in it. He was arrested and took 350ml as sample and sealed at the place of occurrence. MO1 and MO2 were taken into custody, after describing in Ext.P1 mahazar, reaching at the Police Station, he registered a crime and Ext.P2 is the FIR. The accused was produced before Court. Ext.P3 is the thondy list. The sample was examined in the laboratory and Ext.P4 is the report. After completing investigation, he laid charge Crl. Appeal No.2140/2004 4 before Court. PW4 deposed that the sample and the seized article were produced before Court as per Ext.P3 151 Form. But, he has not stated that he prepared a forwarding note for sending the sample to the chemical examiner's labe in a tamper proof condition. 5. He deposed before Court that he had affixed his seal on the sample. It is the duty of PW4 to produce those seized articles before Court. PW4, the Sub Inspector has to draw a sample and affix his seal on it and lable on the sample in MO1 and in MO2 and obtain signature of the accused, independent witness and put the signature of the detecting officer. After seizure, when the seized articles were produced before the Police Station, he has to verify the statutory responsibility of careful packing, labelling and sealing of the articles in the presence of the independent witness to ensure the transparency in the procedure. The signature of independent witnesses should be secured, Crl. Appeal No.2140/2004 5 therefore it can be used during trial of the case to pove the veracity and bonafides of the seizure and signature in the seizure mahazar and in the label. In cross examinbation, PW4 categorically admitted that he prepared only Ext.P3 v. only. In such case, the decision reported in **Rajamma State of Kerala** [2014(1) KLT 506] is relevant, in which it is held as follows: “But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis.” ## 6. PW1 and PW2 did not support the seizure. PW3, Police Constable alone supported the detection and seizure. PW1 and PW2 denied their signatures. In such a 6 Crl. Appeal No.2140/2004 situation, it is the primary responsibility of the detecting officer to ensure that he had taken sample from the seized article and it was produced before Court in a tamper proof condition. He is bound to follow Rule 17 of the Chemico-Legal Analysis Rule. When there is no seal or label, it has to be presumed that there is possibility of tampering with the property seized. In such a situation, the prosecution will succeed only they have to show that the arrack was seized from the possession of the accused and all precautionary methods were taken to protect the seized article and safely reached those article in the chemical examiner's lab through Court in a temper proof condition. This position has been explained by the Apex Court in **State of Rajasthan** v. **Daulat Ram** [AIR 1980 SC 1314]. PW4 obtained chemical examination report itself is not sufficient to draw a presumption Crl. Appeal No.2140/2004 7 u/s.293 of Cr.P.C. There is no satisfactory evidence to connect the accused with the alleged seizure. Therefore, the conviction and sentence passed by the trial Court u/s.55(a) of the Abkari Act are set aside and the accused is acquitted and set at liberty. Crl.Appeal is allowed. **P.D. RAJAN, JUDGE.** acd Crl. Appeal No.2140/2004 8