Saneesh, Sandeep and Santosh v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.A NO. 1095 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 16.06.2009 IN SC NO.675 OF 2007 OF ADDITIONAL DISTRICT COURT(ADHOC II), THRISSUR APPELLANT/S: ``` - **`1 SANEESH. S/O KRISHNANUNNY KADAMAMKULAM HOUSE, CHITTANDA DESOM, VILLAGE,, TALAPPILLY.`** - **`2 SANDEEP S/O.KRISHNANKUTTY PUTHUKUDIYIL HOUSE, MANGADU DESOM,, KOTTAPPURAM VILLAGE, TALAPPILLY.`** - **`3 SANTHOSH S/O.KRISHNANUNNY KADAMAMKULAM HOUSE, CHITTANDA DESOM, VILLAGE,, TALAPPILLY. BY ADVS. SRI.P.SANTHOSH (PODUVAL) SMT.R.RAJITHA`** ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1095/2009 **==> picture [20 x 8] intentionally omitted <==** ## **K. BABU, J** **------------------------------------------------Crl Appeal No.1095 of 2009 ------------------------------------------------Dated this the 18[th] day of March, 2024** Aggrieved by the judgment dated 16.06.2009, passed by the Additional Sessions Court Thrissur, (Fast Track Court No.II- Adhoc) the appellants/accused Nos. 1 to 3 have preferred this appeal. Accused Nos. 1 and 3 were convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of four years and pay a fine of Rs. One Lakh. Accused No.2 was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a period of three years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 19.02.2005 at 10.20 p.m., accused Nos. 1 to 3 were found in possession Crl.A.No.1095/2009 **==> picture [20 x 8] intentionally omitted <==** of 15 litres of arrack at Wadakkanchery in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2), 64(A) and 67(B) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offences punishable under Sections 8(2), 64(A) and 67(B) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P2 series, P3 to P6, P7 series, P8 to P18 and MOs1 and 2. Ext.C1 was marked as Court Exhibit. Crl.A.No.1095/2009 **==> picture [20 x 8] intentionally omitted <==** 5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found accused Nos. 1 to 3 guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted them thereunder. Accused No. 4 is acquitted of the offences alleged. 6. Heard Sri. Santhosh P. Poduval, the learned counsel appearing for the appellants/accused Nos. 1 to 3 and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. Crl.A.No.1095/2009 ..5.. 7. The learned counsel for the appellants challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions: (i)Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii)The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. Crl.A.No.1095/2009 ..6.. 9. The alleged seizure was effected on 19.02.2005. The detecting officer had prepared Ext.P3 seizure mahazar. Ext.P3 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court. 10. In _**Bhaskaran v. State of Kerala**_ (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. The sample was received in the Court by the Junior Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in Crl.A.No.1095/2009 **==> picture [20 x 8] intentionally omitted <==** the laboratory by an Excise Guard by name Sri. T.J.Renjith. The Junior Superintendent, the Property Clerk and Sri. T.J.Renjith, the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of various officials who handled the sample during its transit from the Court to the Laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in _**State of Rajasthan v. Daulat Ram**_ [AIR 1980 SC 1314]. 12. In the present case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P16 Certificate of Chemical Analysis has no evidentiary value. 13. In _**Vijay Pandey v. State of U.P**_ [AIR 2019 SC 3569] the Apex Court held that mere production of a Crl.A.No.1095/2009 ..8.. 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 corelated. 14. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellants/accused Nos. 1 to 3 are therefore, found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, ## (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused Nos. 1 to 3 are set aside ; (iii) The accused Nos. 1 to 3 are acquitted of the offence alleged; (iv) They are set at liberty ; Crl.A.No.1095/2009 **==> picture [20 x 8] intentionally omitted <==** (v) Any amount deposited by accused Nos. 1 to 3 as per the interim orders of the Court shall be disbursed to them as per law. Sd/- **K.BABU, JUDGE** kkj