Santhosh v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 6[TH] DAY OF JULY 2021 / 15TH ASHADHA, 1943** ## **CRL.A.NO.623 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.83/2002 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA** ## **APPELLANT/ACCUSED:** SANTHOSH, S/O.MOHANAN, KAMBAYIL HOUSE, THALAYAZHAM VAIKOM. BY ADV SRI.NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A.No.623/2006 ## _**JUDGMENT**_ _Dated this the 6[th] day of July, 2021_ Aggrieved by the judgment dated 18.2.2006, passed by the Additional Sessions Court (Adhoc) II, Kalpetta in Sessions Case No.83 of 2002, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that on 11.4.2000, at about 1.30 P.M., the accused was found transporting 12 bottles, each containing 750 ml. of 'New Janatha Whisky' in a KSRTC bus bearing registration No.KL-15/3461 (TS-371) at Poonkuzhi on the MysoreBathery Main Road. The offence was detected by the Excise Inspector, Sulthan Bathery Excise Range. After completion of investigation, final report was submitted against the accused by PW5, Excise Inspector, Sulthan Bathery, for the offence under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate Court I, Sulthan Bathery. The case was committed to the Sessions Court, Kalpetta from where it was made over to the Additional Sessions Court (Adhoc) II, Kalpetta. 4. On appearance of the accused, charge was framed 3 Crl.A.No.623/2006 against him for the abovesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the offence under Section 55(a) of the Abkari Act. 5. The prosecution examined PWs 1 to 5 and proved Exhibits P1 to P9 and MO1 series. 6. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. 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 upon his defence and to adduce evidence, if any, that he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, passed the impugned judgment. 7. Heard the learned counsel for the appellant Sri.Nireesh Mathew and Sri.M.S.Breez, the learned Senior Public Prosecutor. 8. The learned counsel for the appellant submitted as follows : (a) The unexplained delay in the production of the contraband substance before the court is sufficient to conclude that the prosecution failed to rule out tampering with the sample. 4 Crl.A.No.623/2006 (b) The prosecution miserably failed to establish that the contraband substance allegedly recovered from the possession of the accused finally reached the hands of the Analyst. 9. The learned Public Prosecutor submitted that the prosecution could well establish the charge against the accused. 10. The only point that arises for consideration is whether the judgment of conviction and sentence passed by the trial court requires interference. The point : 11. The Excise Inspector, Sulthan Bathery (PW1) detected the offence. PW1 has given evidence that on 11.4.2000, the Excise Party led by him stopped the KSRTC bus bearing registration No.TS371, near Ponkuzhi Ramaswamy temple and conducted search inside the bus and found the accused possessing 12 bottles each containing 750 ml. of New Janatha Whisky. PW1 seized the bottles containing the contraband substance and arrested the accused. PW1 deposed that he opened one of the bottles and after ascertaining that it contained foreign liquor, sealed the same. PW1 prepared Exhibit P2 seizure mahazar. The remaining bottles and the bottle containing sample, seized from the place of occurrence, and 5 Crl.A.No.623/2006 the accused were produced before PW4, the Range Inspector, Sulthan Bathery. 12. PW2, an Excise Guard, who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. PW3, the conductor of the bus, gave evidence that he had witnessed the seizure of the contraband substance from the bus. PW4, the Range Inspector, produced the accused before the court on 11.4.2000 itself. He produced the articles seized from the place of occurrence only on 13.4.2000. PW5, the Excise Inspector, Sulthan Bathery, conducted investigation and submitted final report on 31.10.2001 before the Magistrate Court concerned. 13. The learned counsel for the appellant submitted that the delayed production of the articles allegedly seized from the place of occurrence has not been satisfactorily explained. PW1 has given evidence that he had produced the accused and the articles seized from his possession along with the sample on 11.4.2000 before PW4. The accused was produced before the court on 11.4.2000 by PW4 himself. He had submitted Exhibit P2, seizure mahazar, before the court on 11.4.2000 itself. But, he failed to produce the properties including the sample on 11.4.2000. He produced the sample and the 6 Crl.A.No.623/2006 other articles only on 13.4.2000. His explanation was that he was busy with other duties and that the articles were in his safe custody. On the question of delayed production of the properties in _**Ravi v. State of Kerala & another** (2011 (3) KHC 121),_ a Division Bench of this Court held thus: "8. _(1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)"_ The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. In the instant case, PW4, the Range Inspector, Sulthan Bathery, who received the properties, including the sample, on 11.4.2000, failed to produce the same on that day before the court though he produced the accused along with other contemparaneous documents. The unexplained delay in the production of the contraband substance including the sample before the court would lead to the conclusion that tampering with the sample could not be 7 Crl.A.No.623/2006 ruled out. On this ground alone, the prosecution must fail in establishing the case against the accused. 14. The learned counsel for the appellant further contended that PW1, the detecting officer, who had drawn the sample, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. It is also contended that Exhibit P2, seizure mahazar, a contemporaneous document prepared at the scene, is silent about the nature and description of the seal used. 15. This Court in _**Bhaskaran v. State of Kerala and another** [2020 KHC 5296]_ has dealt with a similar fact situation and held thus :- _“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. The specimen of the seal shall be produced in the court. 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 (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article_ 8 Crl.A.No.623/2006 _allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied)_ ## 16. This Court _in_ _**Krishnadas v. State of Kerala** (2019 KHC_ ## _191)_ in paragraph 7, held thus: _“7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied)_ ## 17. In the instant case, none of the official witnesses have given evidence as to the nature and description of the seal affixed on the sample. Of course, Exhibit P7, forwarding note contains the specimen of the seal stated to have been affixed on the sample. This Court is in the dark as to when Exhibit P7, copy of the forwarding note, was produced before the court. The learned Magistrate, who counter signed in Exhibit P7, forwarding note, has not written the date on which he made his initial. 18. The resultant conclusion is that the non-mentioning of the nature and description of the seal in Exhibit P2, seizure mahazar and 9 Crl.A.No.623/2006 the lack of evidence from the part of the official witnesses as to the nature of the seal used are serious infirmities affecting the prosecution case. 19. In view of the above mentioned infirmities, the prosecution ought to have examined the thondi clerk and the Excise Guard deputed to hand over the sample to the Chemical Examiner’s laboratory to establish tamper proof despatch of the sample. 20. This Court is in the dark as to the date on which the sample was received by the Excise Guard concerned from the court for delivering the same to the Chemical Examiner’s laboratory. Exhibit P8, the certificate of chemical analysis, shows that the letter of the Magistrate concerned forwarding the sample to the Chemical Examiner’s laboratory is dated 'nil'. This would also lead to a conclusion that tampering with the sample could not be ruled out. 21. It is well established 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 possessed by the accused. This is more so when the sample might have changed several hands 10 Crl.A.No.623/2006 before it reached the hands of the Chemical Examiner {vide : _**State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)_ **,** _**Valsala v. State of Kerala** (1993 KHC 798),_ _**Sathi v. State of Kerala** [2007(1) KHC 778]}_ . 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 the sample seized and that tested have to be corelated. 22. In the instant case, I am of the considered view that the prosecution failed to establish the link evidence to connect the contraband substance with the accused. 23. The court below has ignored these vital aspects. The resultant conclusion is that the conviction and sentence passed against the accused cannot be sustained. In the result, the appeal is allowed. The accused is acquitted of the charge under Section 55(a) of the Abkari Act. He is set at liberty. Sd/- **K.BABU, JUDGE** csl