SATHEESH KUMAR v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ## **`CRL.A NO. 236 OF 2014`** ``` AGAINST THE ORDER/JUDGMENT IN CP 154/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS-III,NEYYATTINKARA SC 473/2012 OF ADDITIONAL DISTRICT COURT & SESSIONS COURT-VII, THIRUVANANTHAPURAM / IV ADDITIONAL MACT ``` ## **`APPELLANT:`** ``` SATHEESH KUMAR, S/O.SOMAN, PUTHRAVILAKOM VEEDU, THEMBAMUTTOM, THALAYAL DESOM, ATHIYANNOOR VILLAGE, NEYYATTINKARA. ``` ``` BY ADV SRI.M.DINESH ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM – 682 031. ``` ``` BY SMT. MAYA M.N – P.P. ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` 2 ## **P. G. AJITHKUMAR, J. =========================== CRL. APPEAL No. 236 OF 2014 ============================ Dated this the 17[th] day of June, 2022** ## **JUDGMENT** This is an appeal filed under Section 374(2) of the Code of Criminal Procedure, 1973. The appellant stands convicted and sentenced for the commission of an offence under section 8(1) read with Section 8(2) of the Abkari Act, 1077. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1 lakh, with a default sentence of simple imprisonment for five months. The legality and propriety of the said judgment of conviction and order of sentence are under challenge in the appeal. 2. Heard the learned counsel for the appellant and the learned Public Prosecutor. 3. Learned counsel appearing for the appellant stressed on 3 points to assail the impugned judgment. Although the evidence relating to seizure of the contraband from the possession of the appellant is not seriously contested, the learned counsel would submit that for want of procedural compliance, the prosecution is CRL.A.No.236 OF 2014 3 bound to fail. However, the trial court without taking into account those infirmities in the prosecution evidence, convicted and sentenced the accused which is illegal. He was convicted on the charge that he was found in possession of 10 litres of arrack at 06.30 p.m on 13.10.1998 at Thalayal in Athiyannoor Village. 4. It is contended that the Mahazar prepared for seizure of the contraband, Ext.P1 does not contain seal which was affixed on the seized article and also the sample said to have been prepared. His contention is that when there is no sample impression of the seal in the seizure mahazar and no copy of the forwarding note is produced in court, there is a total lack of evidence with respect to the proper custody of the samples during the period between its preparation and examination in the chemical examiner’s laboratory. Adding to that, the learned counsel would submit that MO1- the can allegedly carried by the accused for transporting the arrack was empty at the time of production before the Court. Of course, a reason has been placed before the trial court that by lapse of time, the can that was entrusted with the Excise Inspector for safe custody as is seen from Ext.P3 property list, its contents was emptied and seal torn of in its natural course. It is possible CRL.A.No.236 OF 2014 4 that due to the long lapse of time, the paper label would get destroyed and torn of. The arrack in the plastic can could be lost also due to the passage of time. When that fact is considered in the light of other infirmities and inconsistencies in the evidence regarding the production of samples before Court, forwarding of the same into laboratory and also non-production of the forwarding note which alone could establish a link between the preparation of sample and reaching of the same in the chemical examiner’s laboratory, the prosecution is bound to fail, the learned counsel contends. 5. PW6 is the Clerk in the Court of Judicial Magistrate of the First Class-III, Neyyattinkara who was examined to prove that the sample was duly forwarded to the laboratory from the Court. It is seen from Ext.P9, Chemical Analysis Certificate that sample was received in the laboratory on 12.11.1998 along with a request from the Magistrate. Evidence on record, however, is insufficient to prove when the sample was produced before the Court and forwarded to the laboratory, and also who was in custody of the same during the interregnum. In this situation non-production of the forwarding note assumes much relevance. CRL.A.No.236 OF 2014 5 6. Ext.P1 seizure mahazar was prepared contemporaneous to the seizure, at the place of occurrence. It is stated that the contraband was sealed at the place itself. At the time of production of MO1 before the Sessions Court, no such seal was seen on it. Curiously enough, no impression of seal was available in the seizure mahazar, Ext.P1 also. In nutshell; MO1 was empty when produced before the Court, no forwarding note was produced in Court and there is no evidence with respect to the custody of the sample till it reached the Court. Together with that, lack of sample seal impression on Ext.P1 creates a serious doubt on the case of the prosecution. 7. In the said context the view taken by this court in ## **Moothedath Sivadasan and Another v. State of Kerala** **[2021 KHC 3232]** is relevant. A single Judge of this Court took the view that failure to affix sample seal on the seizure mahazar can in certain cases becomes fatal to the prosecution case. It was held, - _“_ 6. The main contention put forward by the learned counsel for the appellant is regarding the failure on the part of the prosecution in establishing the link between the contraband article allegedly seized from his possession, with the sample CRL.A.No.236 OF 2014 6 which was subjected to chemical analysis. It is discernible from Ext.P2 seizure mahazar that immediately upon seizure, two samples were taken from the articles seized, one from one of the bottles having the capacity of 375ml and the other from one among the bottles having the capacity of 180ml. It is also stated that after drawing the sample as mentioned above in two separate bottles, both of them were sealed and submitted before the court. However, the crucial aspect to be noticed in this regard is that Ext.P2 seizure mahazar, a crucial document by which seizure was effected, does not contain the impression of specimen seal claimed to have been affixed on the sample nor it contain the description of the said seal. In Moothedath Sivadasan and Another v. State of Kerala [2021 KHC 3232], this Court clearly observed that the absence of seal on seizure mahazar or the description thereof in the same is a crucial lacuna on the part of the prosecution. 7. In Vijay Pandey v. State of Uttarpradesh [AIR 2019 SC 3569], it was held that, merely because of the reason that, the chemical analysis contains the nature of the samples seized, the same by itself cannot be a ground for conviction unless it is shown that, the very same sample which was taken from the articles seized from the possession of the accused was subjected to chemical analysis. In order to establish the same, the prosecution has to prove each and CRL.A.No.236 OF 2014 7 every link right from the seizure of the contraband article till it reaches at the hands of the Analyst. In this case, Ext.P2 seizure mahazar does not contain the impression of the seal or the description thereof, and hence it cannot be concluded that, the aforesaid link has been established by the prosecution. The absence of the establishing the said link results in failure on the part of the prosecution to prove the tamper proof condition of the sample subjected the chemical anlysis. In such circumstances, it is a lacuna in the prosecution case and the appellant is entitled for the benefit of doubt. In the above circumstances, I am of the view that, the finding entered into by the Sessions Court as to the guilt of the appellant is liable to be interfered with” 8. Viewed so, the failure in affixing seal in Ext.P1 in the facts and circumstances of the case, becomes fatal to the prosecution. Said aspect certainly creates serious doubt in the genesis of the prosecution itself, the result being that the accused is entitled to get the benefit of said doubt. The findings of the Sessions Court, therefore, is liable to be reversed. The appellant can only be found not guilty. CRL.A.No.236 OF 2014 8 Hence, the appeal is allowed. The appellant is acquitted under section 386 (b) of the Code and he is set at liberty. If he has deposited any amount as fine as per the order of this Court dated 11.03.2014, the same will be refunded. **Sd/P. G.AJITHKUMAR JUDGE** nk