SASI and RAJAN v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 10[TH] DAY OF AUGUST 2021 / 19TH SRAVANA, 1943** **CRL.A NO. 2021 OF 2006** **AGAINST THE JUDGMENT DATED 30.09.2006 IN SC 258/2006 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC-III), NORTH** **PARAVUR, ERNAKULAM** ## **APPELLANTS/ACCUSED NOS.1 & 2:** **1 SASI, AGED 35 YEARS S/O.SUBRAMANIAN, POYYAKKARA HOUSE, THUNDATHUM KADAVU KARA, VARAPPUZHA VILLAGE, PARAVUR TALUK.** **2 RAJAN, AGED 50 YEARS S/O.KUMARAN, CHUVANNARIYAN PADATH, CHIRAKKAKOM KARA, VARAPUZHA VILLAGE, PARAVUR TALUK.** **BY ADVS. SRI.C.C.THOMAS (SR.) SRI.NIREESH MATHEW** ## **RESPONDENTS/COMPLAINANT:** **STATE OF KERALA, REP. BY THE CIRCLE INSPECTOR OF EXCISE, N.PARAVUR,, ERNAKULAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2021 OF 2006** 2 ## **K. BABU J.** **------------------------------------** **Crl.A.No.2021 of 2006** **------------------------------------** Dated this the 10[th] day of August, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 30.09.2006, passed by the Additional Sessions Judge, (Adhoc-III), North Paravur in SC.No.258/2006, the two accused (A1 & A2) have preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(i) of the Kerala Abkari Act. 3. The prosecution case is that on 26.08.2003 at about 12.30 p.m., the appellants/accused Nos.1 and 2 and another were found in possession of 46.800 liters of Coconut Toddy for the purpose of sale in building No.X/366 of Varappuzha Panchayath. PW1, the Circle Inspector of Excise Enforcement Squad, Ernakulam, **CRL.A NO. 2021 OF 2006** 3 detected the offence. 4. Final report was submitted against the appellants/accused Nos.1 & 2 and another for the offence punishable under Section 55(i) of the Abkari Act before the Judicial First Class Magistrate Court-I, North Paravur. 5. The case was committed to the Sessions Court, Ernakulam, from where it was made over to the Trial Court. On appearance of the accused charge was framed against them for the offence punishable under Section 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6 and Exts.P1 to P11 and Mos. 1 to 5. 7. After closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded innocence. The **CRL.A NO. 2021 OF 2006** 4 trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the appellants/accused Nos.1 & 2 are guilty of the offence under Section 55 (i) of the Abkari Act and they were convicted thereunder. The accused No.3 was acquitted of the offence. The appellants/accused Nos.1 & 2 were sentenced to undergo rigorous imprisonment for a term of one year each and to pay a fine of Rs.1,00,000/-each. 8. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellants/accused Nos.1 & 2 and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The counsel for the appellants/accused Nos.1 and 2 contended that the prosecution has not succeeded in establishing that the contraband substance allegedly **CRL.A NO. 2021 OF 2006** 5 seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. 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** 12. PW1 has given evidence that on 26.08.2003 at about 11.30 a.m., he searched the building No.X/34 of Varappuzha Panchayath, in front of which a board 'Toddy Shop' was displayed. On inspection PW1 found the appellants in possession of 46.800 liters of Coconut Toddy intended for sale. When he asked about the authorised licence for conducting the sale of Toddy, the appellants told him that they had no licence in their possession. PW1 seized the Coconut Toddy stored in 72 **CRL.A NO. 2021 OF 2006** 6 numbers of 650 ml bottles. He also recovered cash amounting to Rs.725/. The accused was arrested from the spot by PW1. He also prepared Ext.P1 seizure mahazar. PW1 had also seized 24 empty bottles, 8 craters, 6 glass tumblers. PW1 collected sample from the contraband substance in a bottle for the purpose of Chemical analysis and affixed his personal seal. 13. PWs. 2 and 3, the independent witnesses, did not support the prosecution case. The contraband substances and the accused were produced before PW4, who later produced the accused before the court. PW4 also produced the articles seized from the place of occurrence before the court. PW6 conducted investigation and submitted final report before the Court against the accused. 14. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions: (a) There is no evidence to show that the properties, **CRL.A NO. 2021 OF 2006** **==> picture [7 x 9] intentionally omitted <==** including the sample, allegedly recovered from the place of occurrence were produced before the court in a tamper-proof condition. - (b) There is no evidence to show that the specimen impression of the seal used had been produced before the court and forwarded to the Chemical Examiner's laboratory. - (c) Prosecution failed to establish the date on which the sample was forwarded to the Chemical Examiner's laboratory and the name of the person with whom the sample was sent. - (d) The delay in the analysis of the sample in the Chemical Examiner's laboratory has not been satisfactorily explained. - (e) There is no convincing evidence to show that the forwarding note was produced before the court. 15. The seizure was effected by PW1. Subsequent to the seizure, the articles were produced before PW4, Excise Inspector, Excise Range Office, Varapuzha. PW4 **CRL.A NO. 2021 OF 2006** 8 gave evidence that he had produced the properties before the court, but he failed to furnish the date on which the articles were produced before the court. The list of properties sent to the Magistrate whereby the articles were to be produced before the court, has not been produced and marked in evidence. These circumstances lead to the conclusion that the prosecution failed to establish the production of the properties without delay before the court. There is no evidence to show that the articles including the sample reached the court in a tamper-proof condition. 16. Ext.P11, certificate of chemical analysis, would show that one sealed packet having a sealed bottle containing 600 ml of white and turbid liquid with sediments alleged to be Toddy was received in the laboratory and the same was subjected to analysis. It is further stated in Ext.P11 that the seals on the bottle were intact and found tallied with the sample seal provided. **CRL.A NO. 2021 OF 2006** **==> picture [7 x 9] intentionally omitted <==** 17. There is no evidence to show that the specimen impression of the seal stated to have been affixed on the bottle containing the sample was produced before the court and forwarded to the Chemical Examiner. There is also no evidence to show that a requisition to send the sample or forwarding note was produced before the court. The relevance of a forwarding note is that it contains the specimen impression of the seal affixed on the sample and the name of the person with whom the properties were sent to the Chemical Examiner. 18. In the absence of any evidence to show that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner the certification in Ext.P11 that the seal on the bottle was intact and found tallied with the sample seal provided cannot be accepted. 19. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: **CRL.A NO. 2021 OF 2006** 10 “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.” ## 20. 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”. 21. In view of the fact that there is no evidence to convince the court that the specimen impression of the **CRL.A NO. 2021 OF 2006** **==> picture [13 x 9] intentionally omitted <==** seal had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P11 chemical analysis report. 22. Ext.P11 would further show that the sample reached the laboratory on 24.11.2003. The sample was subjected to analysis only on 11.02.2005. Prosecution has not offered any explanation for the delay in examination of the sample. 23. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 24. In the instant case, the delay of more than one **CRL.A NO. 2021 OF 2006** 12 year in the analysis of the sample remains unexplained. 25. As discussed above, PW4 was not aware of the date on which the sample was produced before the court. He was not in a position to tell before the court as to with whom the sample and other articles were forwarded to the court. There is no material to ascertain the name of the Excise Official who received the sample from the court, much less the date of receipt. Ext.P11 would show that an Excise Guard by name P.Jayachandran delivered the sample to the Chemical Examiner's laboratory. 26. It is the admitted case of the prosecution that the sample changed several hands. It remained in the possession of the Police official who produced the same before the court; it was in the custody of the property clerk of the court; another Excise official received the sample from the court; an Excise Guard by name P.Jayachandran delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their **CRL.A NO. 2021 OF 2006** 13 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** [(1980) 3) SCC 303]) 27. 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. 28. 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. (see: **Sathi v. State of Kerala** [2007(1) KHC 778]). **CRL.A NO. 2021 OF 2006** 14 29. 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. 30. 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 appellants/accused Nos.1 & 2 are therefore not guilty of the offence punishable under Section 55(i) of the Abkari Act. They are acquitted of the charge levelled against them. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS