Remanan s/o Ramesan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 17TH DAY OF JUNE 2020 / 27TH JYAISHTA, 1942** ## **CRL.A.No.1421 OF 2008** **AGAINST THE JUDGMENT AND SENTENCE IN S.C.NO.2353/04 DATED 30.06.08 OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK-III, THIRUVANANTHAPURAM** **C.P.NO.118/03 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-I, ATTINGAL IN CRIME NO.25/02 OF CHIRAYINKEEZHU EXCISE RANGE** ## **APPELLANT/ACCUSED:** **REMANAN S/O RAMESAN, CHARUVILA VEEDU, PARAKKONAM, MUTTAPPALAM DESOM, AZHOOR VILLAGE, CHIRAYINKEEZHU TALUK.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SRI.SHAJIN S.HAMEED** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY EXCISE INSPECTOR, CHIRAYINKEEZHU EXCISE RANGE.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12-06-2020, THE COURT ON 17-06-2020 DELIVERED THE FOLLOWING:** Crl.A.No.1421/2008 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.1421 of 2008 -------------------------------------------Dated this the 17[th] day of June, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.2353/2004 on the file of the Court of the Additional Sessions Judge, Thiruvananthapuram. 2. The prosecution case is that, on 25.07.2002, at about 12:30 hours, at a public road at the place Muttappalam, PW3 Preventive Officer found the appellant/accused having in his possession a can containing five litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW7 and marked Exts.P1 to P8 documents and MO1 material object. No evidence was adduced by the accused. Crl.A.No.1421/2008 3 5. The trial court found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard the learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW3 is the Preventive Officer who detected the offence. He has given evidence with regard to the occurrence in detail. PW4 is another Preventive Officer who was in the excise party led by PW3. His evidence corroborates the testimony of PW3 regarding the occurrence. 9. PW1 is one of the independent witnesses examined by the prosecution to prove the occurrence. He admitted his signature in Ext.P1 seizure mahazar. His evidence supports the Crl.A.No.1421/2008 4 prosecution case to some extent. He has deposed that he saw the accused and the excise party standing at the road and that there was a can in the possession of the accused. He also identified MO1 can in the court as the can which was found in the possession of the accused. 10. PW2 is another independent witness examined by the prosecution. He did not support the prosecution. He denied having seen the incident. 11. Ext.P8 is the chemical examination report received in respect of the sample which was sent for analysis. It shows that the sample of liquid contained 38.06% by volume of ethyl alcohol. 12. Learned counsel for the appellant contended that the prosecution has not produced any record which would show that sample was taken from the very same liquid allegedly seized from the possession of the accused. Learned counsel for the appellant contended that the evidence adduced by the prosecution is not sufficient to find that Ext.P8 chemical analysis report relates to any sample taken from the liquid allegedly Crl.A.No.1421/2008 5 seized from the possession of the accused. 13. The recital in Ext.P1 seizure mahazar is that, PW3 seized the can from the possession of the accused and sealed it and affixed label on it, bearing his signature and also the signature of the witnesses and the accused. There is no recital in Ext.P1 seizure mahazar that sample was taken at the spot of the occurrence from the can. PW3 and PW4 have also not given any evidence that sample of the liquid from the can was taken at the spot of the occurrence. 14. PW7 is the property clerk of the Magistrate's Court concerned. PW7 has deposed that the can produced in the court was received on 25.07.2002 and as per the order of the court, sample was taken from the can and the sample bottle was sealed and sent for analysis. PW7 also identified MO1 can in the court. PW7 stated on cross-examination that sample of the liquid was taken on 25.07.2002 itself but it was sent for analysis on 05.08.2002. 15. There is no record to show that PW7 had taken sample of liquid from the can which was produced before the court by Crl.A.No.1421/2008 6 the Excise Inspector concerned. No document or record was prepared for drawing sample from the liquid contained in the can. There is also no order of the court produced which would show that a direction was given for taking sample from the can at the court. 16. As noticed earlier, the recital in Ext.P1 seizure mahazar is that, PW3 seized the can containing the liquid from the possession of the accused and sealed it and affixed label on it, bearing the signature of himself and the witnesses and the accused. The evidence of PW3 shows that he had produced the can before PW5 Excise Inspector. Ext.P5 is the crime and occurrence report prepared by PW5. The description of the can given in Ext.P5 report does not show that it was sealed or labelled or that there was any seal or label on it. 17. PW5 has given evidence that he produced the can before the court as per Ext.P6 property list. The description of the can given in Ext.P6 property list also does not show that there was any seal or label on the can which was produced before the court. Crl.A.No.1421/2008 7 18. In the aforesaid circumstances, there is no assurance that the very same can which was seized by PW3 from the possession of the accused was produced before PW5 Excise Inspector and the very same can was produced before the court by PW5 as per Ext.P6 property list. It follows that, there is also no assurance that sample of liquid was taken by PW7 from the very same can which was seized from the possession of the accused by PW3. It further follows that, there is also no assurance that the very same sample which was taken from the liquid contained in the can seized from the possession of the accused was tested in the laboratory and that Ext.P8 chemical examination report relates to such sample. ## 19. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself._ Crl.A.No.1421/2008 8 _The sample seized and that tested have to be co-related"._ 20. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 21. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the appellant/accused is entitled to be acquitted. Crl.A.No.1421/2008 9 22. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him, shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**