Shaiju S/o Baby v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE A.HARIPRASAD TUESDAY, THE 11TH DAY OF NOVEMBER 2014/20TH KARTHIKA, 1936 CRL.A.No. 1137 of 2004 ( ) --------------------------- AGAINST THE JUDGMENT IN S.C. NO. 66/2004 of III ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT NO.1,THRISSUR DATED 15-06-2004 APPELLANT(S)/ACCUSED: ---------------------------------------- SHAIJU S/O.BABY,PARIYADAN HOUSE, PANDARANPARA DESOM, KUTTICHIRA VILLAGE. BY ADVS.SMT.K.V.BHADRA KUMARI SMT.SHIBI. K.P. RESPONDENT(S)/COMPLAINANT: ---------------------------------------------------- STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY PUBLIC PROSECUTOR SMT.MADHU BEN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **A.HARIPRASAD, J.** ## **-------------------------------------Crl.Appeal No.1137 of 2004** **-------------------------------------Dated this the 11[th] day of November, 2014.** ## **JUDGMENT** The appellant faced trial before the learned Additional Sessions Judge in S.C.No.66 of 2004 for an offence punishable under Section 58 of the Abkari Act (in short, “the Act”). 2. Prosecution case, in brief, is as follows: On 06.11.2002 at 6.30 p.m., the appellant was found transporting seven litres of arrack in a jerry can of ten litres capacity and thereby, he committed the offence mentioned above. 3. Heard the learned counsel for the appellant and the learned Public Prosecutor. 4. On perusal of the trial court's judgment, it can be seen that four witnesses testified on the side of the prosecution and ten documents marked. MOs 1 to 3 are the material objects. DW1 was examined on the defence side. 5. Learned counsel for the appellant contended that the court below wrongly appreciated the evidence to find the guilt of the appellant. However, non-production of vital documents to show that the contraband allegedly recovered from the possession of the appellant had ultimately 2 Crl.Appeal No.1137/2004 reached the court and thereafter before the Chemical Examiner's Laboratory is fatal to the prosecution case. Before delving into those questions, I shall go through the oral evidence in this case. 6. PW1 was the Sub Inspector of Police. On 06.11.2002, he along with other Officers was doing patrol duty in a Police jeep. At that time, he found the appellant/accused with a can in his hand. When they approached the appellant, he tried to escape. He was restrained and questioned. It was found that he possessed seven litres of illicit arrack in a can of ten litres capacity. Three bottles full of liquor, apiece 180 ml., were taken as samples. `340/- was also recovered from the possession of the accused. Ext.P1 is the mahazar said to be prepared by PW1 from the place of occurrence. Accused was arrested and Exts.P2 and P3, arrest notice and inquest, respectively, were prepared. Thereafter, a case was registered. In spite of cross-examination on this witness, the search and detection of offence spoken to by him remains credible. 7. PW2 is a Police Constable who was in the party of PW1. He also testified in tune with PW1 in respect of the search and seizure. Learned counsel for the appellant contended that there is incongruity in the testimonies of PWs 1 and 2 with regard to the availability of light and the direction to which they were proceeding at the time of detection and also regarding the scene of occurrence. PW1 stated that there was no street light at that time, whereas PW2 deposed that the accused was identified in 3 Crl.Appeal No.1137/2004 the street light. Learned Public Prosecutor, in reply to this contention, contended that the time of detection was 6.30 p.m. and normally there would be twilight, even if there was no street light on. According to the learned counsel for the appellant, during the month of November, sun sets early and darkness sets in well before the alleged time of detection. Whatever that be, there is no case for the appellant that he was not arrested from the place alleged by the prosecution. Identity of the accused has not been disputed at the time of cross-examination. Only thing alleged is that he was falsely implicated in the crime. 8. PW3 is the Village Officer who prepared Ext.P6 sketch. PW4 was the Circle Inspector of Police, Chalakkudy at the material time. He investigated the matter. He submitted Ext.P7 scene mahazar, Ext.P8 remand report and Ext.P9 property list. He proved Ext.P10 chemical analysis report showing that the contraband recovered from the possession of the accused was illicit arrack. 9. Learned counsel for the appellant strongly contended that in the absence of any forwarding note or requisition for sending the sample for chemical analysis, the prosecution evidence cannot be believed to find that the same contraband recovered from the accused reached the court and thereafter, the Chemical Examiner's Laboratory. Reliance is placed on a decision of a learned Single Judge of this Court in **Joseph v. State of Kerala (2009 (4) KHC 537)** . The relevant dictum reads thus: 4 Crl.Appeal No.1137/2004 _“Yet another infirmity in the prosecution case is that there is no request or forwarding note either produced or marked to indicate that a request was made to the Magistrate to send the sample bottle to the chemical examiner for analysis. PW6 who conducted the investigation, has no case that he had made any such request or had filed any forwarding note. Likewise, PW1 also has no case that he had made a request to the Magistrate to send the sample bottle to the chemical examiner. Ext.P4 certificate of chemical analysis dated 24/11/1997 is relied on by the prosecution to show that the sample bottle was duly despatched to the chemical examiner for analysis. In the absence of any forwarding note or requisition, it is not explained as to how the Magistrate forwarded a sample bottle to the chemical examiner as per his covering letter dated 19/08/1997 referred to in Ext.P4 certificate. Even the office copy of the covering letter has not been produced. The thondi section clerk who was the custodian of the properties before the Magistrate, was not examined to prove matters such as the date of receipt of the property before the Magistrate, the condition in which those properties were received in Court including the fact whether a sample bottle was received and if so, whether the seals if any on such bottle were in tact, the date of despatch of the sample to the chemical examiner and the nature of the custody of the sample bottle until then. The prosecution can succeed in securing_ 5 Crl.Appeal No.1137/2004 _a conviction against the appellant only if it is shown that the sample which was subjected to chemical analysis as evidenced by Ext.P4 certificate was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly held by the accused and which after change of hands, eventually reached the hands of the chemical examiner.”_ It is also contended by the learned counsel for the appellant that neither PW1 nor PW2 testified as to who drew the sample from the place of occurrence. There is no evidence adduced by the prosecution to show the proper drawal of sample. Therefore, the conviction on that score is also bad, contended the learned counsel for the appellant. In this context, it is relevant to note that the property clerk attached to the court was not examined. Basing on the decision in **Sasidharan v. State of Kerala (2007** **(1) KLT 720)** , it is contended that the prosecution should fail on that reason. The relevant dictum reads thus: _“ Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant. The prosecution had a duty to prove that it was the sample taken from the contraband liquor seized from_ 6 Crl.Appeal No.1137/2004 _the accused which had reached the hands of the Chemical Examiner in a fool proof condition.”_ To buttress the above proposition, another decision relied on by the learned counsel for the appellant is **Lalitha v. State of Kerala (2012 (1) KLT 550)** , wherein it has been held that in the absence of any evidence as to who took the sample, no reliance can be placed on the report of the Chemical Examiner to conclude that the liquid recovered was arrack. A Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** considered the questions comprehensively and held that no conviction can be entered against the accused in a prosecution, unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband allegedly found in the possession of the accused. This binding precedent clearly shows that the prosecution in this case is very weak. There is no forwarding note or requisition produced and proved in this case. Further, who drew the sample is also not established. To crown all these things, neither the property clerk nor the person who carried the sample to the Chemical Examiner's Laboratory was examined. It is also seen that the detection was on 06.11.2002 and the sample reached the Chemical Examiner's Laboratory on 09.01.2003. The records also show that the contraband articles were returned from the court to the detecting officer because of the lack of space in the court. Who kept the articles in custody after they were returned is not established. Not only that, when was it produced back in 7 Crl.Appeal No.1137/2004 the court is also not established. Hence, I find in the light of the above said decisions that the conviction is not sustainable in law. In the result, the appeal is allowed. Conviction of the appellant in S.C.No.66 of 2004 on the file of III Additional Sessions Court (Adhoc), Fast Track-I, Thrissur for an offence punishable under Section 58 of the Abkari Act is hereby set aside. He shall be set free forthwith, if not wanted in any other case. His bail bond shall stand cancelled. If the appellant had deposited any amount at the time of suspending the sentence, the same shall be refunded to him. All pending interlocutory applications will stand dismissed. ## **A. HARIPRASAD, JUDGE.** ## **cks**