Raveendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 2[ND] DAY OF AUGUST 2021 / 11TH SRAVANA, 1943** **CRL.A NO. 2490 OF 2006** **AGAINST THE JUDGMENT IN SC 1865/2003 OF ADDITIONAL SESSIONS** **COURT (ADHOC)-II, KOLLAM,** ## **APPELLANT:** **RAVEENDRAN, S/O NEELAKANTAN, PUNNAVILA PADINJATTATHIL, EDACADU MURI, PORUVAZHI VILLAGE, KUNNATHOOR TALUK, KOLLAM.** BY ADV C.RAJENDRAN ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP.BY SUB INSPECTOR, EXCISE RANGE, SASTHAMCOTTA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM** . BY PUBLIC PROSECUTOR SMT. MAYA M.N. **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2490 of 2006 2 ## **K.BABU, J.** **===================== Crl.A.No.2490 of 2006** **=====================** Dated this the 2[nd] of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 28.11.2006, passed by the Additional Sessions Judge (Adhoc) II, Kollam, in S.C.No.1865/2003, the accused has preferred this appeal. The accused was convicted of the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 23.5.2002, the accused was found in possession of 1 litre of arrack in a plastic bottle. The Excise Preventive Officer, Sasthamcotta detected the offence. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Sasthamcotta. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court, (Adhoc) II, Kollam. On appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused Crl.A.No.2490 of 2006 3 pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P4 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 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 learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.2,00,000/-. 6. Heard Sri.C.Rajendran, the learned counsel appearing for the appellant/accused and Smt.Maya M.N, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that the prosecution failed to establish that the articles said to have Crl.A.No.2490 of 2006 4 been seized from the possession of the accused eventually reached the hands of the Analyst at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 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, the Excise Preventive Officer, Excise Range Office, Sasthamcotta detected the offence. PW1 has given evidence that on 23.5.2002 at 1.30 pm, the accused was found in possession of 1 litre of illicit arrack in a plastic can at Poruvazhi. The contraband substance was seized from the possession of the accused as per Ext.P1 seizure mahazar by PW1. The accused was arrested from the spot. PW2, the Excise Guard, who had accompanied PW1, supported the prosecution case. PW3, the independent witness, did not support the prosecution. PW4 has conducted investigation and submitted final report. Crl.A.No.2490 of 2006 5 11. The learned counsel for the appellant, relying on the following circumstances, contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's laboratory: a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1 seizure mahazar is silent regarding the nature and description of the seal affixed on the bottle containing the sample. c) The specimen impression of the seal has not been produced before the court and forwarded to the Chemical Examiner. d) The delay in analysis of the sample at the Chemical Examiner's laboratory has not been satisfactorily explained. 12. The oral evidence of PWs 1 and 2, the detecting officer and the other official witness, is silent regarding the nature and description of the seal affixed on the bottle containing the sample. Ext.P1 seizure mahazar does not contain Crl.A.No.2490 of 2006 6 any narration as to the nature of the seal used by the detecting officer. 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 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 v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)** . 13. The learned counsel for the appellant/accused contended that there is nothing to show that the specimen impression of the seal was produced before the court and provided to the Chemical Examiner for verification and to ensure that the specimen seal so provided was tallied with the seal affixed on the bottle containing the sample. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. 14. The copy of the forwarding note, which contains the specimen impression of the seal and the name of the official with whom the sample is entrusted for delivering the same to the Crl.A.No.2490 of 2006 7 Chemical Examiner's laboratory, has not been produced and marked in this case. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** while dealing with a similar fact situation, this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 15. In **Rajamma v. State of Kerala (2014(1) KLT** ## **506)** , this Court held thus: “The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. Crl.A.No.2490 of 2006 8 16. There is no convincing evidence before the court to see that the specimen impression of the seal had been provided to the Chemical Examiner. In such a situation, no evidentiary value can be given to Ext.P4 certificate of chemical analysis. Ext.P4 certificate of analysis would show that the sample reached the laboratory on 15.6.2002. The sample was analysed on 18.2.2003. The prosecution has not offered any explanation for the delay in examination of the sample. While considering the delay in examination of the sample this Court in **Krishnadas** ## **v. State of Kerala (2019 KHC 191)** held as follows: “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.” 17. In the instant case, the delay of almost eight months in subjecting the sample for analysis has not been explained by the prosecution. Crl.A.No.2490 of 2006 9 18. The admitted case of the prosecution is that the sample remained in the possession of the property clerk of the court, the excise official who received the sample from the court, the Excise Guard Sri.Ratheesh Kumar who delivered the sample to the laboratory. There is no evidence to show the date on which the sample was handed over to the excise official who delivered the same to the Chemical Examiner's laboratory. It has come out in evidence that the sample changed several hands. None of the witnesses who handled the sample before it reached the laboratory has been examined by the prosecution to prove that while in their custody, the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314].** 19. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. Crl.A.No.2490 of 2006 10 20. 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. 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 benefit of doubt arising from the absence of link evidence as discussed above. 21. 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. The appellant is acquitted of the charge. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU** ## **JUDGE** ab