Ramankutty s/o Govindan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 CRL.A NO. 1773 OF 2006** **AGAINST THE JUDGMENT DATED 28.07.2006 IN SC 206/2005 OF** **ADDITIONAL SESSIONS COURT (ADHOC)III, MANJERI, MALAPPURAM APPELLANT/ACCUSED:** **RAMANKUTTY S/O.GOVINDAN, AMBALAPPARAMBIL, MELATTUR AMSOM DESOM, PERINTALMANA TALUK.** **BY ADV SRI.P.SAMSUDIN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY EXCISE RANGE OFFICER, PERINTALMANNA THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1773 of 2006 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.1773 of 2006** **------------------------------------** Dated this the 12[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 28.07.2006, passed by the learned Additional Sessions Judge, Fast Track Court No.III (ADHOC), Manjeri, in SC.No.206/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 02.08.2003 at about 04.00 p.m., the accused was found in possession of 2 ½ liters of illicit arrack in a can at Melattur amsom in Perinthalmanna Taluk. PW1, an Excise Preventive Officer of the Excise Special Squad, detected the offence. PW5, the Excise Range Inspector, Perinthalmanna, conducted investigation and final report was submitted Crl.A.No.1773 of 2006 3 before the Judicial First Class Magistrate Court-I, Perinthalmanna on 05.04.2005. The case was committed to the Sessions Court, Manjeri from where it was made over to the Additional Sessions Court, (ADHOC) III, Manjeri. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence of prosecution consists of the oral evidence of PWs 1 to 6 and Exts.P1 to P10 and MO1. 5. After closure of the evidence on behalf of the prosecution, 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 that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments Crl.A.No.1773 of 2006 4 addressed from both sides, found that the accused was guilty of offence under Sections 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 6. Heard Sri. P. Shamsudin, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended as follows: a) The prosecution failed to establish that the articles allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory. b) The prosecution has not given any satisfactory explanation for the delay in Crl.A.No.1773 of 2006 5 completing investigation. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 10. PW1, an Excise Preventive Officer of the Excise Special Squad, detected the offence. PW1 has given evidence that on 02.08.2003 while the Excise team led by him was on patrol duty, in Melattur amsom, the accused was found carrying a black can at Ambalapparamba. PW1 inspected the can found in the possession of the accused and ascertained that it contained illicit liquor. 11. The contraband substance found in possession of the accused was seized by PW1 by way of Ext.P2 seizure mahazar. The accused was arrested. PW1 has given evidence that he had taken 200 ml of arrack as sample from the can Crl.A.No.1773 of 2006 6 in a bottle having a capacity of 375 ml and sealed the same. He has further given evidence that the accused and the contraband substance were entrusted to the Excise Guard on duty at the Excise Range Office, Perinthalmanna. 12. PW2, the Excise Guard, who had accompanied PW1, supported the version of PW1. PWs 3 and 4, the independent witnesses, did not support the prosecution case. PW6, the Excise Guard, who received the contraband substance from PW1 also supported the prosecution case. PW5, Excise Range Inspector, Perinthalmanna, has given evidence that he conducted investigation and submitted final report against the accused. 13. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's laboratory. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: Crl.A.No.1773 of 2006 7 - (a) The detecting officer, PW1, and the other official witnessess have not given evidence as to the nature and description of the seal affixed on the sample bottle. - (b) There is no description of the nature of the seal affixed on the sample bottle, in Ext.P2 seizure mahazar. - (c) The specimen impression of the seal affixed on Ext.P2 seizure mahazar differs from the specimen impression affixed on Ext.P7, copy of the forwarding note. - (d) Ext.P7, copy of the forwarding note, is silent regarding the person with whom the sample bottle was entrusted to deliver the same to the Chemical Examiner's laboratory. - (e) The learned Magistrate failed to write the date on which he affixed his signature in Ext.P7, copy of the forwarding note. 14. I have gone through the depositions of the Crl.A.No.1773 of 2006 8 witnesses who supported the prosecution case and Ext.P2 seizure mahazar. None of the witnesses have given evidence as to the nature and description of the seal affixed on the bottle containing the sample. 15. While dealing with a similar fact situation this Court in **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) held thus: “20. PW5 has not given evidence as to the nature or description of the seal which he had affixed on the bottle containing the sample. Ext.P3 seizure mahazar is also silent on this aspect. There is no evidence to show that PW5 had produced the specimen of the seal in the court or that he had provided the same in the forwarding note prepared by him for sending the sample for analysis. The nature of the specimen seal provided in Ext.P6 copy of the forwarding note is not legible. In these circumstances, there is no assurance that the very same sample allegedly drawn by PW5 at the spot of the occurrence from the liquid in the can was produced in the court and the very same sample was forwarded for analysis and that Ext.P7 chemical analysis report relates to the very same sample. 21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Crl.A.No.1773 of 2006 9 Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied) 16. The specimen seal provided in Ext.P7, copy of the forwarding note, is not legible. There is no evidence that the specimen of the seal has been produced in the Court. 17. Ext.P7, copy of the forwarding note, is silent with regard to the name of person with whom the sample was sent for analysis. Ext.P8 certificate of analysis would show that the sample was received in the laboratory Crl.A.No.1773 of 2006 10 through, the Excise guard Shri V. Shankaran on 06.08.2003. It is not discernible as to why the space meant for writing the name of the Excise Official with whom the sample was sent remained unfilled in Ext.P7, copy of the forwarding note. 18. Learned Magistrate has not written the date on which he put his initial on Ext.P7. The learned Magistrate was expected to specifically mention the date on which he affixed his initial/signature on the copy of the forwarding note. Ext.P7, copy of the forwarding note, contains the date (03.08.2003), on which it was prepared by PW5. This Court is also in the dark as to who received the sample bottle from the court. 19. In such a situation it was imperative for the prosecution to examine the Thondi Clerk of the court or the Excise official who received the sample bottle from the court and the official who delivered the sample bottle to the Chemical Examiner's laboratory to prove the tamper proof despatch of the sample to the laboratory. Crl.A.No.1773 of 2006 11 20. 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 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 Crl.A.No.1773 of 2006 12 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.” (Emphasis supplied) 21. In the absence of the link evidence as discussed above, this Court comes to the conclusion that prosecution failed to establish the tamper proof despatch of the sample to the Chemical Examiner. 22. As I have held that the prosecution failed to establish the tamper proof despatch of the sample bottle to the Chemical Examiner's laboratory, no evidentiary value can be attached to Ext.P8 Chemical analysis report. 23. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the chemical examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. (vide: **State of Rajasthan v. Daulat Ram** [1980 Crl.A.No.1773 of 2006 **==> picture [13 x 9] intentionally omitted <==** (3) (SCC) 303] **, Sathi v. State of Kerala** [2007(1) KHC 778]). 24. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. This Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS