RAVEENDRAN @ SASTHAV RAVI S/O BHASKARAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943** **CRL.A NO. 2099 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1307/2004 OF ADDITIONAL SESSIONS** **COURT, TRIVANDRUM, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** RAVEENDRAN @ SASTHAV RAVI S/O BHASKARAN,KATTALAMPOIKAYIL VEEDU, ELAMBA DESOM, ELAMBA VILLAGE. BY ADV M.DINESH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADVS. SRI. M.S. BREEZ (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2099 of 2006 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2099 of 2006** --------------------------------------- Dated this the 19[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 04-10-2006, passed by the learned Additional Sessions Judge (Fast Track-I), Thiruvananthapuram in S.C No.1307/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that on 17-09-2002 at 12.00 p.m., the accused was found in possession of about 45 litres of wash in 3 plastic pots on the northern portion of the kitchen of the residence of the accused at Nellimood in Thiruvananthapuram district. The offence was detected by the Excise Inspector, Excise Range Office, Chirayinkeezhu. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Crl.A No.2099 of 2006 3 Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court-I, Attingal. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court (Fast track-I), Thiruvananthapuram. On appearance of the accused charge was framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P9 and MO1 series. 6. 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 is 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 trial court, after hearing arguments addressed from both sides, found that 4 Crl.A No.2099 of 2006 the accused is guilty of offence under Section 55(g) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of three years and to pay a fine of Rs.1 Lakh. 7. Heard Sri.Dinesh.M, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution has not satisfactorily established that the contraband substance allegedly seized from the possession of the accused, eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW2, the then Excise Inspector, Chirayinkeezhu Excise Crl.A No.2099 of 2006 5 Range, was on patrol duty on 17-09-2002. When the Excise team led by PW2 reached Nellimoodu, PW2 got reliable information that wash was kept in the residence of the accused. The Excise team led by PW2 after complying with the procedural formalities searched the residence of the accused at Kattalampoika and found 3 plastic pots containing 45 litres of wash. 12. PW2 has given evidence that he seized the contraband substance from the possession of the accused and effected his arrest. PW2 collected wash from the plastic pots as sample in three, 750 ml bottles, each containing 500 ml, and sealed the same. PW2 prepared Ext.P2 seizure mahazar and Ext.P1 search list. PW2 produced the accused and the contraband substance before the court. 13. PW3, the Excise preventive officer who had accompanied PW2, supported the prosecution case. 14. PW1, the independent witness examined to prove the search and seizure, did not support the prosecution case. PW4 conducted investigation and submitted final report. 15. The learned counsel for the appellant/accused submitted Crl.A No.2099 of 2006 6 that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence, eventually reached the Chemical Examiner's laboratory. 16. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) PW2, the detecting officer and PW3, the Excise official who had accompanied PW2, have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. - (b) Ext.P2 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used. - (c) Exhibit P7, copy of the forwarding note, is silent regarding the specimen impression of the seal stated to have been affixed on the bottles containing the sample. Exhibit P7 is also silent regarding the name of the person with whom the sample bottles were sent to the Chemical Examiner’s laboratory. Crl.A No.2099 of 2006 7 17. I have gone through the depositions of PW2, the detecting officer and PW3, the Excise official who had accompanied PW2 in the search and seizure. PWs 2 and 3 have not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. Exhibit.P2, seizure mahazar, is also silent regarding the specimen impression of the seal stated to have been affixed on the bottles containing the sample. There is no evidence to show that the specimen of the seal affixed on the bottles containing the sample was produced before the court and forwarded to the Chemical Examiner. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottles 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 also 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 {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Krishnadas v. State of Kerala**_ [2019 8 Crl.A No.2099 of 2006 KHC 191], _**Achuthan v. State of Kerala**_ [ILR 2016 (2) Ker 145]}. 18. When the specimen of the seal affixed on the bottles containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused, reached the hands of the Chemical Examiner without any tampering (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 19. In the instant case, there is nothing to show that any specimen impression of the seal was provided to the Chemical Examiner for verification. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. 20. The resultant conclusion is that no evidentiary value can be Crl.A No.2099 of 2006 9 given to Ext.P8 certificate of chemical analysis. 21. Exhibit P6, the list of thondi articles produced before the court, would show that on 17-09-2002 the thondi articles including 3 bottles containing the sample were produced before the court. 22. The endorsement dated 17-09-2002 of the learned Magistrate would show that the properties so produced as per Ext.P6 were returned to the Excise Inspector with a direction to produce the same before the court on the subsequent day. The official witnesses have not given evidence as to whether they produced the articles as directed in Ext.P6. No material is before the court to see the date on which the articles including the bottles containing the sample, returned on 17-09-2002, were produced later. This Court is in the dark as to who produced the bottles containing the sample and on which date. 23. Exhibit P7, the copy of the forwarding note, is silent regarding the name of the Excise official who received the bottles containing the sample from the court. The date on which the bottles containing the sample were received from the court for delivering the 10 Crl.A No.2099 of 2006 same to the Chemical Examiner has not been mentioned either in Ext.P7, the copy of the forwarding note or in any other contemporaneous documents. None of the official witnesses have given evidence on these aspects. Exhibit P8 would show that on 05-10-2002, the Excise guard by name G.Vijayakumar Nair delivered the bottles containing the sample to the Chemical Examiner's laboratory. But in Ext.P7, copy of the forwarding note, the space meant for writing the name of the Excise guard with whom the sample was sent remained vacant. 24. It has come out in evidence that the bottles containing the sample changed several hands. On 17-09-2002 PW2 produced the sample before the court. The properties produced before the court including the bottles containing the sample were returned to the Excise officials as is evident from the endorsement of the learned Magistrate in Ext.P6. The bottles containing the sample thereafter reached the court. But this Court is not in a position to ascertain the name of the official who produced the bottles containing the sample in the court. This Court is also in the dark as to the name of the 11 Crl.A No.2099 of 2006 Excise official who received the samples from the court. In such a situation, it was imperative for the prosecution to examine the thondi clerk of the court and the Excise official who handled the sample, to prove the tamper-proof despatch of the sample to the laboratory {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Kumaran v. State of Kerala**_ [2016 (4) KLT 718]. 25. 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. 26. 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 contraband substance allegedly recovered from the place of occurrence. {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 27. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the Crl.A No.2099 of 2006 12 sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 28. 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 55(g) and of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** KAS