Ravi v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943** ## **CRL.A NO. 2189 OF 2006** **AGAINST THE JUDGMENT IN SC 1114/2003 OF PRINCIPAL ASSISTANT SESSIONS JUDGE, KOLLAM** **APPELLANT/ACCUSED:** **RAVI, S/O PARAMESWARAN MURUNTHOLIL THEKKATHIL VEEDU, MARUTHOORKULANGARA MURI, KARUNAGAPPALLY VILLAGE, KARUNAGAPPALLY TALUK.** **BY ADVS. N.VIMALAN RENNY AUGUSTINE** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.S. BREEZ** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.2189 of 2006 2 ## **K.BABU, J.** **===================== Crl.A.No.2189 of 2006** **=====================** Dated this the 27[th ] of July, 2021 **JUDGMENT** Challenge in this appeal is to the judgment dated 26.10.2006, passed by the Principal Assistant Sessions Judge, Kollam in S.C No.1114/2003. The appellant was convicted of the offence punishable under Section 8(2) of the Abkari Act by the impugned judgment. 2. The prosecution case is that on 28.7.1998, around 4.30 pm., the accused was found in possession of 1300 ml. of illicit arrack in two plastic bottles at Maruthur Kulangara in Karunagappallay Village in Kollam district. The Excise Enforcement Special Squad, Kollam detected the offence. 3. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court,Karunagappally. The case was committed to the Sessions Court, Kollam from where it was made over to the Assistant Sessions Court, Kollam. On appearance of the accused Crl.A.No.2189 of 2006 3 charges were framed against him for the offences punishable under Sections 8(2) and 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 offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P5 and MOs1 to 3. 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 was guilty of the offence punishable under Section 8(2) of the Abkari Act. He was acquitted of the offence under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 6. The accused filed this appeal on 14.11.2006. The appeal was admitted on 15.11.2006. The appeal was placed for Crl.A.No.2189 of 2006 4 hearing on 13.7.2021. 7. Heard Sri.N.Vimalan, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned Public Prosecutor submitted that this appeal ought to have been filed before the Sessions Court under Section 374(3)(a) of the Code of Criminal Procedure (for short 'the Code'). 9. The points that arise for consideration are: (i) Is it just and reasonable to relegate the accused to the Sessions Court by returning the appeal for presenting it before that court? (ii) Whether the impugned judgment of conviction and sentence requires interference. ## POINT No.I 10. The present appeal challenging the sentence of imprisonment for a term of two years and to pay a fine of Rs.1,00,000/- passed by the learned Assistant Sessions Judge, Kollam ought to have been instituted before the Sessions Court under Section 374(3)(a) of the Code. There cannot be any dispute that the Sessions Judge may make over the case in question to the Crl.A.No.2189 of 2006 5 Assistant Sessions Court under Section 10(2) of the Code and the learned Assistant Sessions Judge under Section 9(3) of the Code was competent to try and dispose of the same. As per Section 374(2) of the Code an appeal challenging conviction on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him, may appeal to the High Court. 11. As mentioned above, the offence alleged against the accused was detected on 28.7.1998. The final report was submitted before the committal court by the investigating agency on 2.5.2001. The investigating agency had taken nearly three years to complete the investigation. The trial commenced only on 18.1.2006. After conclusion of the trial, the accused was convicted on 26.10.2006. 12. This appeal has been pending on the files of this Court for the last more than 15 years. 13. Speedy investigation and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution. Crl.A.No.2189 of 2006 6 14. The Honourable Apex Court has made it clear that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 of the Constitution of India. 15. The question whether the appeal is to be returned for presenting it before the Sessions Court is to be decided in the backdrop of the principles declared by the Apex Court as stated above. 16. Though this appeal was mistakenly filed, the Registry did not notice any defect and this Court admitted the appeal. 17. When an appeal challenging the conviction on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed, the appeal lies to the High Court. Hence there cannot be any dispute as to the competence of this Court to decide the appeal on merit as per the Code. More over this Court is vested with inherent powers conferred by the Constitution itself to do complete justice in a given set of facts. Taking into account of the fact that this appeal has been pending on the files of this Court for the last 15 years, I am of the view that it is not just and reasonable to relegate the Crl.A.No.2189 of 2006 7 accused to the Sessions Court. Hence this Court decides to proceed with the appeal and to decide the same on merits. POINT NO.II. 18. The learned counsel for the appellant submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the possession of the accused was eventually subjected to analysis at the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to establish his contentions: i) PW1, the detecting officer, has not given evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. ii) Ext.P2 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used. iii) The specimen impression of the seal affixed on the bottle containing the sample has not been produced before the court and marked. 19. The learned Public Prosecutor, per contra, submitted Crl.A.No.2189 of 2006 8 that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 20. PW1, the detecting officer has not given evidence as to the nature and description of the seal that he affixed on the bottle containing the sample. Ext.P2 seizure mahazar is also silent regarding the nature of the seal used. 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 (vide: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)** . 22. The specimen impression of the seal has not been produced before the court and marked. The copy of the forwarding note, which contains the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory and the specimen impression of the seal used, have not been produced before the court. 23. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** while dealing with a case in which forwarding note Crl.A.No.2189 of 2006 9 ## was not produced and marked, 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.” ## 24. 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”. 25. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P5 chemical analysis report. Crl.A.No.2189 of 2006 10 26. This Court is kept in the dark as to the person with whom the sample was sent to the Chemical Examiner’s laboratory. Ext.P5 certificate of chemical analysis would show that as per letter dated 25.7.1998 of the Judicial First Class Magistrate Court, Karunagappally, the sample was forwarded to the Chemical Examiner's laboratory. The sample reached the laboratory on 1.9.1998. The prosecution has not given any convincing evidence as to the date on which the sample was received by the official concerned from the court. The necessary inference is that the official concerned received the sample from the court on 25.7.1998, the date of the letter of the Judicial First Class Magistrate Court, Karunagappally whereby the sample was forwarded to the laboratory. The necessary conclusion is that the sample reached the laboratory after more than a month. This Court had an opportunity to consider a similar fact situation in **Vishwanathan v. State of Kerala (2016(3) KHC 38)** . In **Vishwanathan** ’s case (supra) this Court held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the Crl.A.No.2189 of 2006 11 representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 27. It is the admitted case of the prosecution that the sample changed several hands before it reached the Public Analyst. The sample remained in the custody of the property clerk of the court, the excise official who received the sample from the court and Sri.Stephan K.P, the Excise Guard, who delivered the sample to the laboratory. None of these witnesses were 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. (See: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314])** 28. In view of the above discussed infirmities, no sanctity can be given to Ext.P5 certificate of analysis. 29. 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.2189 of 2006 12 30. 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. 31. The upshot of the above discussion is that the prosecution failed to establish the charge against the accused. The conviction entered and sentence passed by the trial court, ignoring these vital aspects, cannot 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. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K. BABU JUDGE** ## **ab**