Sathyan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **CRL.A NO. 872 OF 2007** **AGAINST THE JUDGMENT IN SC 1044/2001 OF ADDITIONAL SESSIONS COURT** **FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA** ## **APPELLANT/ACCUSED:** SATHYAN, S/O. MOSA, THENKARATHALA VEEDU, PARAKKATTUKULAM, KARODE VILLAGE, NEYYATTINKARA. BY ADV G.SUDHEER ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA. S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.872 of 2007 2 K.BABU, J. -------------------------------------Criminal Appeal No.872 of 2007 --------------------------------------Dated this the 20[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 08.05.2007, passed by the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara in S.C.No.1044/2001, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 3. The prosecution case is that on 29.08.1997 at about 11.30 a.m, while the Excise Inspector, Thiruvananthapuram Excise Range Office, was on patrol duty the accused was found in possession of a 10 litre black jerry can at the western side of the Parakkadu pond on the public road at Karodu Desom. On examination, it was found that the can contained illicit arrack. The Excise Inspector (PW3) effected the seizure of the contraband substance. PW4, the another Excise 3 Crl.A No.872 of 2007 Inspector of Thiruvananthapuram Excise Range completed the investigation and submitted final report against the accused. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court-II, Neyyattinkara. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P10 and MO1. 6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce Crl.A No.872 of 2007 4 evidence, if any, he may have in support thereof. From the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant as aforesaid. 7. Heard Sri. G.Sudheer, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused relied on the following circumstances to contend that 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: - (a) The nature and description of the seal stated to have been affixed on the can containing the contraband substance had not been narrated in Ext.P1 seizure mahazar. - (b) The detecting officer has not given evidence as to the nature and description of the seal affixed on the can. - (c) No sample was drawn at the place of occurrence. - (d) The process of drawing sample by the property clerk as per Crl.A No.872 of 2007 5 the instruction of the learned Magistrate has no sanction of law. - (e) The bottle containing the sample forwarded from the Court was not subjected to analysis in the Chemical Examiner's laboratory. 9. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 10. In the present case, the detecting officer allegedly recovered a 10 litre can from the possession of the accused at the place of occurrence. The can containing the illicit liquor was produced before the Court. The detecting officer had not produced the specimen seal along with the property to ensure the genuineness of the article produced. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the can in Ext.P1 seizure mahazar. He has not given Crl.A No.872 of 2007 6 evidence as to the nature and description of the seal affixed on the can containing illicit arrack. 11. In Bhaskaran K. v. State of Kerala and another (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. 12. The property clerk of the Court, who was examined as PW6, deposed that she had drawn the sample from the bulk quantity of the contraband substance produced before the Court and the same was forwarded to the Chemical Examiner's laboratory. The process of drawing sample by the property clerk of the Court is not a procedure established by law. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Excise official concerned. This Court had occasion to consider this aspect in Baburaj's case (Supra). The relevant portion of the judgment is extracted below: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or Crl.A No.872 of 2007 7 the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 13. In Baburaj's case (supra) this Court concluded that as the procedure adopted in drawing sample from the contraband substance by the property clerk is not a procedure established by law the certificate of chemical analysis obtained based on the sample so drawn has no evidentiary value. Crl.A No.872 of 2007 8 14. Yet another aspect that requires consideration is that, there is every possibility that the sample forwarded by the learned Magistrate might not have been subjected to analysis in the Chemical Examiner's laboratory to form the opinion in Ext.P6 certificate of chemical analysis. 15. Exhibit P7, the letter issued by the Judicial First Class Magistrate Court-II, Neyyattinkara shows that the sample was forwarded to the laboratory on 29.09.1997. Exhibit P6 certificate of chemical analysis shows that a bottle containing 150ml of a clear and colourless liquid received on 27.09.1997 was subjected to analysis. The necessary inference is that the sample forwarded as per letter dated 29.09.1997 was not subjected to analysis to form the basis of the findings in Ext.P6 chemical analysis report. 16. The result of the above discussion is that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence was produced before the Court. The prosecution also miserably failed to establish that the sample forwarded from the Court was subjected to analysis to form the foundation of Ext.P6 certificate. The learned Sessions Judge has Crl.A No.872 of 2007 9 disregarded all these vital aspects while recording the impugned conviction and sentence. The accused is therefore, found not guilty of the offence punishable under Sec.58 of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS