Reghu, S/o Govindan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **CRL.A NO. 367 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 509/2006 OF SPECIAL COURT** **(NDPS ACT CASES), THODUPUZHA, IDUKKI** **APPELLANT/ACCUSED:** **REGHU, S/O. GOVINDAN, AGED 1 YEARS VADAKKEKKARA HOUSE, PAINVAU KARA,, IDUKKI VILLAGE.** **BY ADVS. SRI.T.A.SHAJI SMT.T.V.NEEMA ANWIN JOHN ANTONY** ## **RESPONDENT/COMPAINANT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM, REPRESENTING THE S.I.OF POLICE,, IDUKKI.** **BY ADV M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.367 of 2007 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.367 of 2007** **------------------------------------** Dated this the 01[st] day of September, 2021 ## **J U D G M E N T** This appeal is directed against the judgment dated 07.02.2007, passed by the learned Additional Sessions Judge/Special Judge for NDPS Act cases, Thodupuzha, in SC.No.509/2006. By the impugned judgment, the accused has been convicted of the offences punishable under Sections 8(2) and 55(g) of the Kerala Abkari Act. 2. The prosecution case is that on 21.12.2004 at about 05.30 p.m. in the forest area near painavu, the accused was found engaged in distillation of arrack. Sub Inspector of police, Idukki 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(g) Crl.A.No.367 of 2007 3 of the Abkari Act before the Judicial First Class Magistrate Court, Idukki. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the trial court. On appearance of the accused charges were framed against him for the aforesaid offences. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 3 and Exts.P1 to P10 and MOs1 to 16. 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 the arguments addressed Crl.A.No.367 of 2007 4 from both sides, found that the accused was guilty of the offences under Sections 8(2) and 55(g) of the Abkari Act and he was convicted thereunder. He has been sentenced to undergo simple imprisonment for a term of three years and to pay a fine of Rs.1,00,000/- under Section 55(g) of the Abkari Act. No separate sentence was awarded for the offence under Section 8(2) of the Abkari Act. 6. Heard Sri. Anvin John Antony, the learned counsel appearing for the appellant/accused and also Sri. M.C.Ashi, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the accused contended as follows: - a) The prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the scene of occurrence. - b) The exclusive possession of the contraband substances by the accused Crl.A.No.367 of 2007 5 has not been established by the prosecution. c) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges 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. PW2, the detecting Officer, has given evidence that on 21.12.2004 on getting reliable information that the accused was engaged in distillation of arrack in the forest area near 56 colony, Painavu, the police team led by him Crl.A.No.367 of 2007 6 proceeded to there. According to PW2, on seeing the police party the accused ran into the forest. On further search, PW2 recovered wash, arrack and other implements used for distillation of arrack. PW2 collected sample in 2 bottles, each containing 375ml, from the arrack seized from the place of occurrence. He prepared Exhibit.P2 mahazar. 11. PW1, the independent witness, did not support the prosecution case. PW3, the investigating officer, arrested the accused on 13.09.2005 from his residence. He completed investigation and submitted final report. 12. The learned counsel for the accused/appellant contented that the prosecution failed to give convincing evidence on the identity of the accused. Going by the evidence of PW2, the only witness who supported the prosecution to establish the incident proper, it is evident that he had seen the accused from a distance of about 25 to 30 meters from the place of occurrence. According to Crl.A.No.367 of 2007 7 him, on seeing the police party the accused ran away from the scene. It is evident that PW2 had only a fleeting glimpse of the person who ran away from the scene. In Exhibit.P2 seizure mahazar PW2 had not narrated any of the features to identify the accused. PW2 has no case that he had any previous acquaintance with the accused. Though the accused was arrested approximately after six months by PW3, PW2 had no opportunity to see him. Admittedly PW2 identified the accused in the box on 02.01.2007, after a long lapse of 3 years. 13. The law is settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during trial. Where a witness identifies an accused, who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation {vide: _**Kanan and others v. State of Kerala**_ (AIR 1979 SC 1127), _**Jameel v. State of**_ Crl.A.No.367 of 2007 8 _**Maharashtra**_ (AIR 2007 SC 971), _**Raja v. State by Inspector of Police**_ (AIR 2020 SC 254), _**State (Delhi Administration) v. V.C.Shukla and another**_ (AIR 1980 SC 1382), _**Mohd.Abdul Hafeez v. State of AP**_ (AIR 1983 SC 367), _**Mohanlal Gangaram Gehani v. State Of Maharastra**_ (AIR 1982 SC 839) 14. In the present case since PW2 had no previous acquaintance with the accused and he had no opportunity to see the witness after the incident his identification of the accused in the Court is not acceptable. 15. The learned counsel for the petitioner further submitted that the prosecution failed to establish the actual possession of the contraband substance by the accused. According to PW2, he had seen the accused running away from the scene of occurrence into the forest. He has not given evidence that the accused was in the actual possession of the contraband substances allegedly Crl.A.No.367 of 2007 9 recovered from the place of occurrence. 16. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. 17. PW2 has not given evidence as to the nature of the seal affixed on the bottles containing the sample. Exhibit.P2 seizure mahazar is also silent regarding the nature of the seal used by the detecting officer. 18. In **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) and in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held that 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 and the nature of the seal used shall be mentioned in the seizure mahazar. This Court further held that the specimen of the Crl.A.No.367 of 2007 **==> picture [13 x 9] intentionally omitted <==** seal shall be produced in the court so as to enable the Court to satisfy the genuineness of the sample produced. 19. The Junior Superintendent of the court on 22.12.2004 received the samples. Exhibit.P8, copy of the forwarding note, is silent as to the date on which the bottles containing the sample were forwarded to the Chemical Examiner's laboratory. Ext.P8 also does not contain the name of the official with whom the samples were forwarded to the Chemical Examiner's laboratory. The learned Magistrate who countersigned Exhibit.P8 has not mentioned the date on which he made his initial. Exhibit.P10 certificate of chemical analysis would show that the samples reached the laboratory on 24.12.2004. Exhibit.P10 would further show that a police constable No. 1535 delivered the bottles containing sample in the laboratory. So, it has come out in evidence that the samples remained in the custody of the Junior superintendent of the Crl.A.No.367 of 2007 11 court, the Property Clerk of the court and the police constable who delivered the same in the chemical examiner's laboratory. None of these witnesses were examined by the prosecution to establish that the seals on the samples were not tampered with while the samples were in their custody. It was imperative on the part of the prosecution to examine those witnesses to establish the tamper-proof despatch of the sample to the laboratory. (vide: **State of Rajasthan v. Daulat Ram** [1980 (3) (SCC) 303]. Yet another aspect which requires consideration is that though the samples reached the laboratory on 24.12.2004, they were subjected to analysis only on 15.06.2006, approximately after one and half years. The prosecution has not offered any explanation for the delay in the analysis of the samples. 20. While dealing with a similar fact situation, this Court in **Krishnadas v. State of Kerala** (2019 KHC 191), held that the non explanation of the delay Crl.A.No.367 of 2007 12 in the analysis of the sample is a suspicious circumstance, the benefit of which must go to the accused. In the instant case, the delay of more than one and half years in the analysis of the sample remains unexplained. 21. 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. 22. 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]}. Crl.A.No.367 of 2007 13 23. 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 and other circumstances discussed above. 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 offences punishable under Sections 8(2) and 55(g) of the Abkari Act. He is acquitted of the charges levelled against him. He is set at liberty. ## This Crl.Appeal is allowed as above. SD/- **K. BABU, JUDGE** rps/