## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
## **PRESENT**
**THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN**
**MONDAY, THE 09TH DAY OF NOVEMBER 2020 / 18TH KARTHIKA, 1942**
## **CRL.A.No.2064 OF 2005**
**[AGAINST THE JUDGMENT DATED 26-10-2005 IN S.C.NO.63 OF 2004 ON THE FILE OF THE SESSIONS COURT, KOZHIKODE]**
## **APPELLANT/ACCUSED:**
**RAJU @ RAJASEKHARAN NAIR, S/O. RAGHAVAN NAIR, VADAKKEL HOUSE,, KADAVOOR AMSOM, PUNNOOR DESOM, KOZHIKODE.**
**BY ADVS. SRI.P.SANJAY SMT.A.PARVATHI MENON**
## **RESPONDENT/COMPLAINANT:**
**STATE OF KERALA**
**REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.**
## **OTHER PRESENT:**
**R1 BY SRI.K.B.UDAYAKUMAR, SR.PP**
**THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-11-2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**CRL.APPEAL No.2064 of 2005 2**
## **JUDGMENT**
**Dated this the 9th day of November 2020**
...
The appellant is the accused in Sessions
Case No.63 of 2004 on the file of the Sessions
Court, Kozhikode.
2. The above case is charge sheeted by the
Excise Inspector, Thamarassery Range against the
appellant alleging offence punishable under
Section 55(a) of the Abkari Act.
3. The prosecution case is that, the
accused was found in possession of 2 litres of
arrack on 12.10.2000 at 11 a.m. in a jerry can.
4. To substantiate the case, the
prosecution examined PW1 to PW7. Exhibits P1 to
P7 are the documents marked on the side of
prosecution. MO1 is the material object.
5. After going through the evidence and
documents, the trial court found that, the
## **CRL.APPEAL No.2064 of 2005 3**
accused committed the offence under Section 55(a) of the Abkari Act. The accused 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, the accused is directed to undergo simple imprisonment for
three months.
6. Aggrieved by the above conviction and
sentence, this Criminal 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, there is absolutely no evidence
to show that the seized articles are reached in the hands of the Analyst. The counsel submitted
that, the prosecution has to establish all the links starting from the seizure of the
contraband article till it reaches in the hands
of the Analyst. The counsel submitted that, the
prosecution miserably failed to prove that, the
## **CRL.APPEAL No.2064 of 2005 4**
seized contraband article reached in the hands
of the Analyst.
9. The learned Public Prosecutor submitted that, there is oral and documentary evidence to prove the offence against the appellant. The public prosecutor submitted that, this Court may not interfere with the conviction and the
sentence imposed on the appellant.
10. The point for consideration in this
appeal is whether the accused committed the
offence under Section 55(a) of the Abkari Act ?
11. The prosecution case is that, the
accused was found in possession of 2 litres of illicit arrack on 12.10.2000. Exhibit P3 is the
seizure mahazar prepared by the detecting officer. The property was produced before the Court on the same day as evident by exhibit P4. As per exhibit P5 forwarding note, the property was dispatched for chemical analysis on 12.10.2000 itself through one E.P.Sreenivasan,
## **CRL.APPEAL No.2064 of 2005 5**
Excise Guard. But on a perusal of exhibit P7 chemical analysis report will show that, the sample received by the Analyst only on 18.10.2000. Excise Guard Sreenivasan was not examined in this case. There is absolutely no explanation from the prosecution regarding the custody of sample from 12.10.2000 till 18.10.2000. It is the fundamental 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. The Apex Court in **State of Rajasthan v. Daulat Ram** [1980 KHC 873] observed like this:
_“1.This appeal by special leave is directed against an order of the High Court of Rajasthan dated 5[th] March, 1973 by which the respondent Daulat Ram was acquitted of the charge under S.9A of the Opium Act. It appears that on the 24[th] January, 1968 the District Excise Officer went to search the shop of the respondent in Jodhpur city and P.W.2 Sher Singh, Excise Inspector, recovered an iron box along with two tins filled with opium. On being interrogated the respondent disclosed to the Excise Inspector that some quantity of opium was lying in_
## **CRL.APPEAL No.2064 of 2005 6**
_his house at Ratanada and in pursuance of the information given by the respondent the raiding party went to the house of the respondent and at his instance three tins alleged to have continued illicit opium were also seized. Several samples were taken and sealed and given to Jawan Singh of the Excise Headquarters on the 24[th] January, 1968. On the 27[th] January, 1698 the samples marked ‘A’ were taken from the Excise Headquarters and were handed over to the S.I. Aidanram of Udai Mandir Police Station. On 29[th] February,1968 Nathu Singh took samples, marked ‘A’ given to him by PW 11 Harak Chand to the officer of the superintendent of Police, Jodhpur, for onward transmission to the public Analyst but the samples were not accepted by the office of the Superintendent of Police as the labels were not in order. It is the admitted case of the prosecution that the samples changed several hands before reaching the public analyst. In other words, the samples remained in the custody of S.I. Aidanram, P.S. Udai Mandir, Nathu Singh, Gajraj Singh, Jawan Singh and the Assistant Public Analyst and yet none of these witnesses were examined by the prosecution to prove that while in their custody to seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the samples being changed or tampered with during the period a fact which had to be proved affirmatively by the prosecution. This is the main infirmity which has been relied upon by the High Court in holding that the prosecution has not proved that right from the stage of the seizure of the opium up to the time when the samples were_
## **CRL.APPEAL No.2064 of 2005 7**
_handed over to the public analyst the seals remained intact. The prosecution has not taken the Court into confidence in disclosing as to the reason why the office of the Superintendent of Police refused to take the samples. Even though the labels were not in order it was for the prosecution affirmatively to prove that the seals were still intact. It is true that Harak Chand and Jabbar Singh have stated that the seals of the samples were intact so long as they were in their custody. But then as pointed out above neither Jawan, Nathu, Gajraj, Aidanram and Assistant Public Analyst were examined hence it cannot be said that the prosecution has proved all the links starting from the seizure of the samples till the same reached the hands of the Public Analyst do that the Court could conclude that the seals remained intact throughout. The High Court in view of this serious lacuna was of the opinion that the prosecution doubt that the opium seized was the opium which was sent to the Public Analyst. In fact, the prosecution realized its mistake and at the fag end of the trial an application was made under S.540, Criminal Procedure Code to examine Nathu singh, Gajraj Singh and Jawan singh. This application was rejected by the learned Magistrate. Even before the Hingh Court the stand taken by the counsel for the State was extremely vacillating and at one time he filed an application for additional evidence and some time later chose to withdrawn it. It is obvious that the onus is on the prosecution to prove the entire case at the trial and the prosecution could not be allowed to fill up the gaps or lacunae left at the trial, at the appellate or_
**CRL.APPEAL No.2064 of 2005 8**
_revisional stage. In these circumstances we do not find any error of law in the view taken by the High Court. We find no merit in this appeal which is accordingly dismissed.”_
In the light of the above judgment, it is
clear that, the prosecution miserably failed
to prove all the links starting from the seizure of the contraband article till it reaches in the hands of the Analyst in this
case. There is absolutely no explanation from
the prosecution regarding the possession of the sample from 12.10.2000 till 18.10.2000, on which date the sample reached in the hands of the Analyst. As per exhibit P5 forwarding
note, the sample was sent through the Excise Guard Sri.E.P.Sreenivasan which is clear from exhibit P7 chemical analysis report. But the above Sreenivasan was not examined. For this simple reason, the appellant is entitled the benefit of doubt.
**CRL.APPEAL No.2064 of 2005 9**
Hence, this criminal appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 26.10.2005 in S.C.No.63 of 2004 on the file of the Sessions Court, Kozhikode 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**
