Ramankutty v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944** **CRL.A NO. 737 OF 2008** **AGAINST THE JUDGMENT IN SC 284/2006 OF ADDITIONAL SESSIONS COURT,** **FAST TRACK COURT-II, PALAKKAD** ## **APPELLANT/ACCUSED:** RAMANKUTTY, S/O. VELU, ALAMKUNNU VEEDU, VELLINEZHI VILLAGE, VELLINESHI DESOM, OTTAPALAM TALUK. BY ADVS. P.K.MOHANAN(PALAKKAD) VINOD RAVINDRANATH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.737 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.737 of 2008 --------------------------------------Dated this the 6[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 18.03.2008, passed by the Additional Sessions Court (Fast Track Court No.II), Palakkad in S.C.No.284/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 03.06.2003 at about 12.30 p.m, the appellant/accused was found in possession of about 6 litres of arrack in a 10 litre black can on the southern side of a property that belongs to Ottur Tharavad on the northern side of Padinjare Madom padam at Vellinezhi Desom in Ottapalam Taluk. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. Crl.A No.737 of 2008 3 The case was committed to the Sessions Court, from 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 5 and proved Exts.P1 to P10 and MO1. 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. P.K.Mohanan, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.737 of 2008 4 7. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. It is submitted that the prosecution failed to prove the tamper-proof despatch of the sample drawn at the place of occurrence to the laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) The seizure mahazar does not contain the nature and description of the seal stated to have been - affixed on the bottle containing the sample. - (b) The name of the officer with whom the sample was forwarded to the laboratory has not been mentioned in Ext.P6, the copy of the forwarding note. - (c) The officials who handled the sample during its transit from the Court to the laboratory were not examined as witnesses. 9. Exhibit P1 seizure mahazar does not contain the nature and Crl.A No.737 of 2008 5 description of the seal stated to have been affixed on the bottle containing the sample. PW4, the detecting officer has not given evidence as to the nature and description of the seal used. 10. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. Exhibit P6, the copy of the forwarding note, is silent as to the name of the person with whom the sample was forwarded to the laboratory. The learned Magistrate, who countersigned Ext.P6, has not put the date on which he made his initials thereon. There is nothing to show the date on which the sample was forwarded to the laboratory. The space meant for entering the name of the official with whom the sample was sent remained vacant in Ext.P6 forwarding note. While dealing with 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 Crl.A No.737 of 2008 6 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.” Crl.A No.737 of 2008 7 12. In the present case, neither the property clerk of the Court nor the Excise official concerned was examined to establish the tamper-proof despatch of the sample to the laboratory. The resultant conclusion is that Ext.P10 Certificate of Chemical Analysis has no evidentiary value. 13. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 09.06.2003, it was subjected to analysis only on 02.09.2004. The prosecution has not offered any satisfactory explanation for the delay in the analysis of the sample. On the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” ## In the instant case, the delay of more than one year in the analysis Crl.A No.737 of 2008 8 of the sample remained unexplained, the benefit of which must go to the accused. 14. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 15. 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 contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 16. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. Crl.A No.737 of 2008 9 17. 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. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS