Sasi Pramod Bhavan and Uthaman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 16[TH] DAY OF JULY 2021 / 25TH ASHADHA, 1943** **CRL.A NO. 2305 OF 2006** **AGAINST THE JUDGMENT IN SC 234/2005 OF ADDITIONAL DISTRICT** **& SESSIONS COURT (ADHOC)III, PATHANAMTHITTA** ## **APPELLANTS/1ST AND 2ND ACCUSED:** 1 **SASI PRAMOD BHAVAN, KATTACHIRA, KUMARAPEROOR VADAKKEKARAMURI, CHITTAR SEETHATHODU VILLAGE.** 2 **UTHAMAN, PUTHIYATHU VEEDU, NELLIPLAVU, KUMARAMPEROOR, VADAKKEKARA MURI, CHITTAR SEETHATHODU VILLAGE.** BY ADV V.PHILIP MATHEW ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI. M.S. BREEZ (SR.P.P)** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2305 of 2006 2 ## **K.BABU, J.** **======================= Crl.A No.2305 of 2006** **========================** Dated this the 16[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 8.11.2006, passed by the Additional Sessions Judge, Fast Track Court III, (Adhoc), Pathanamthitta in S.C.No.234/2005, the two accused have preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(g) of the Abkari Act. 3. The prosecution case is that on 21.7.2003 at 16.35 hrs, the accused were found engaged in distilling of illicit arrack in the Kattachira Paruthyanipadi Reserve Forest, Kumaramperoor in Chittar Seethathodu Village. The accused were arrested from the place of occurrence by the Sub Inspector of Police, Chittar Police Station, who registered FIR No.88/2003, alleging the offence punishable under Section 8(2) of the Abkari Act. 4. After completing investigation, final report was submitted against the accused for the offence punishable Crl.A No.2305 of 2006 3 under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ranny. The case was committed to the Sessions Court, Pathanamthitta from where it was made over to the Additional Sessions Court, Fast Track Court III (Adhoc), Pathanamthitta. On appearance of the accused charge was framed against them for the offence punishable under Section 55(g) of the Abkari Act. Both the accused pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P11 and MOs 1 to 4. 6. 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 trial court heard the matter under Section 232 Cr.P.C. and found that there is 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 arguments addressed from both sides, found that the accused are guilty of offence under Section 55(g) of the Abkari Act and they were convicted thereunder. They were sentenced to undergo simple Crl.A No.2305 of 2006 4 imprisonment for a term of one year each and to pay a fine of Rs.1,00,000/- each under Section 55(g) of the Abkari Act. 7. Heard Sri.V.Philip Mathews, the learned counsel appearing for the appellants/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants contended that the prosecution failed to establish that the contraband substance said to have been seized from the possession of the accused eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 10. 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 11. PW5, the Sub Inspector of Police, Chittar Police Station on 21.7.2003 detected the offence. PW5 has given evidence that on 21.7.2003 at 16.35 hrs. on getting reliable information that the accused were engaged in distilling of Crl.A No.2305 of 2006 5 illicit arrack at the place of occurrence, the police party led by him proceeded to there and found the accused in possession of approximately 800 litres of wash and other utensils for manufacturing illicit arrack. He has further given evidence that the contraband substance and utensils used for distilling the illicit arrack were seized as per Ext.P1 seizure mahazar. PW5 arrested the accused. 12. PWs 1 and 2, the independent witnesses examined to prove the seizure and arrest, did not support the prosecution. 13. PW4, the Police Constable, who had accompanied PW5 in the search and seizure supported the prosecution version. PW3, the Forest Range Officer, Vadasserikkara Forest Station also supported the prosecution case. 14. The learned counsel for the appellants/accused contended that there is no convincing evidence that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellants relied on the following grounds to substantiate his contentions: a) The detecting officer, PW5, has not given evidence as to the nature and description Crl.A No.2305 of 2006 6 of the seal affixed on the bottle containing the sample. b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used by the detecting officer. c) The specimen impression of the seal said to have been affixed on the bottle containing the sample has not been produced before the court. d) Ext.P10, forwarding note, is silent regarding the specimen seal. e) The delay in analysis of the sample received in the Chemical Examiner's laboratory has not been satisfactorily explained by the prosecution. 15. PW5 and PW4 have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1 seizure mahazar is also silent about the nature and description of the seal used by the detecting officer. The specimen of the seal said to have been affixed on the sample bottle has not been produced before the Crl.A No.2305 of 2006 7 court. 16. While considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court in **Bhaskaran v. State of Kerala and another (2020 KHC 5296)** 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 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) ## 17. In **Krishnadas v. State of Kerala (2019 KHC** Crl.A No.2305 of 2006 8 ## **191)** this Court 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) 18. There is absolutely no evidence to establish that the specimen of the sample was placed before the court and forwarded to the Chemical Examiner for verification. 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 Crl.A No.2305 of 2006 9 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”. 19. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P11 chemical analysis report. 20. Ext.P10, copy of the forwarding note, is silent regarding the person with whom the sample bottles were sent to the Chemical Examiner's laboratory. The space meant for writing the name of the official with whom the sample was sent remained vacant in Ext.P10 copy of the forwarding note. The learned Magistrate has not written the date on which he affixed his signature in the copy of the forwarding note. Ext.P11 certificate of analysis would show that the sample was received in the laboratory through a Police Constable No.1397 on 2.8.2003. The date on which the sample bottles were forwarded from the court is not discernible from Ext.P10 or in any of the contemporaneous documents. There is nothing to ascertain as to who received the sample bottles Crl.A No.2305 of 2006 10 from the court. In such a situation, the prosecution ought to have examined the Thondi Cleark of the court or the police official concerned to prove the tamper proof despatch the sample to the laboratory. While dealing with a similar fact situation, this Court in **Kumaran v. State of Kerala** ## **(2016(4) KLT 718)** held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the Crl.A No.2305 of 2006 11 prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 21. In the instant case, admittedly, the sample changed several hands. The samples were handled by Thondi Clerk, the police official who received the samples from the court and a Police Constable No.1397, who delivered the samples to the Chemical Examiner's laboratory. None of the witnesses were examined to establish the tamper proof despatch of the sample to the Chemical Examiner's laboratory. 22. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the 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. 23. 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. In the instant case, the prosecution was unable to establish the link connecting the Crl.A No.2305 of 2006 12 accused with the contraband seized and the sample analysed in the laboratory. **(vide: State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** 24. Ext.P11 certificate of chemical analysis shows that the sample reached the laboratory on 2.8.2003. But the samples were analysed only on 12.8.2004. 25. The delay in analysis of the sample has not been satisfactorily explained. 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.” 26. In the instant case, the delay of more than a year in the analysis of the sample remained unexplained. 27. 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 Crl.A No.2305 of 2006 13 appellants/accused are therefore not guilty of the offence punishable under Section 55(g) of the Abkari Act. The accused are acquitted of the charge. They are set at liberty. The Crl.Appeal is allowed as above. **Sd/K. BABU JUDGE** ab