Shaji @ Shaji S/O Anthony v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943** **CRL.A NO. 1479 OF 2007** **AGAINST THE JUDGMENT IN SC 420/2006 OF THE III ADDITIONAL SESSIONS JUDGE (ADHOC), FAST TRACK COURT NO.I, THRISSUR APPELLANT/ACCUSED:** **SHAIJU @ SHAJI S/O.ANTHONY, THENGILAN HOUSE, PERAMBRA VILLAGE, VAZHAKUNNAM DESOM.** BY ADV SRI.C.P.PEETHAMBARAN ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1479 of 2007 2 ## **K.BABU, J.** ## **========================= Crl.A No.1479 of 2007** **==========================** Dated this the 3[rd] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12.7.2007 passed by the III Additional Sessions Judge (Adhoc), Fast Track Court No.1, Thrissur in S.C.No.420/2006, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 63 of the Abkari Act. 2. The prosecution case is that on 5.7.2005 at 3.45 pm., the accused was found in possession of about 19 litres of Indian made foreign liquor in the north-western room of the building having door No.IX/390 of Chalakkudy Municipality situated at Vazhakunnu desom. The Inspector of Police, Chalakkudy detected the offence. 3. After completing investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and (i) of the Abkari Act before the Judicial First Class Magistrate Court, Chalakkudy. The case was committed to Crl.A No.1479 of 2007 3 the Sessions Court, Thrissur from where it was made over to the III Additional Sessions Court, (Adhoc), Fast Track Court No.I, Thrissur. On appearance of the accused charge was framed against him for the offences punishable under Sections 55(a) and (i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 4. The evidence for the prosecution consists of oral evidence of PWs 1 to 5, Exts.P1 to P6 and MOs 1 to 16. 5. After closure of the evidence on behalf of the prosecution, 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 that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 63 of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a term of three months and to pay a fine of Rs.1,000/- under Section 63 of the Abkari Act. Crl.A No.1479 of 2007 4 6. Heard Sri.C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence was subjected to chemical analysis in the Chemical Examiner's laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case 9. 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 10. PW3, the Inspector of Police, Chalakkudy, has given evidence that on 5.7.2005, on getting reliable information that the accused was engaged in the sale of Indian made foreign liquor at his residence, he searched the residence and recovered 19 litres of Indian made foreign liquor. PW3 prepared Ext.P1 Crl.A No.1479 of 2007 5 search list. The accused was arrested from the spot. PW3 collected liquor from four bottles, each containing 180 ml, as samples and sealed the same. PW3 also recovered a sum of Rs.260/- from the possession of the accused. 11. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW4, the Police Constable who had accompanied PW3 in the search and seizure, supported the prosecution case. PW5 conducted investigation and submitted final report. 12. The learned counsel for the appellant/accused relied on the following aspects to contend that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory: a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1 search list, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the seal used by the detecting officer. Crl.A No.1479 of 2007 6 c) There is no evidence to show that the specimen impression of the seal used by the detecting officer was produced before the court and forwarded to the Chemical Examiner's laboratory. 13. PW3 is the detecting officer. He has not given evidence as to the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW4, the official witness who had accompanied PW3, also has not given evidence as to the nature of the seal used by the detecting officer. Ext.P1 search list is silent regarding the nature and description of the seal affixed on the bottles containing the sample. 14. There is no evidence to show that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner's laboratory. 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 Crl.A No.1479 of 2007 7 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: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)** 15. The learned counsel for the appellant/accused contended that there is nothing to show that the specimen impression of the seal was provided to the Chemical Examiner for verification. The prosecution failed to adduce any evidence as to the nature and description of the seal stated to have been used by the detecting officer and to show that the same had been provided to the Chemical Examiner. 16. The copy of the forwarding note, which contains the specimen impression of the seal used and the name of the official with whom the sample is entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case. 17. 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.1479 of 2007 8 “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.” ## 18. 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”. 19. In view of the fact that there is no evidence to Crl.A No.1479 of 2007 9 convince the court that the specimen impression of the seal had been provided to the Chemical Examiner no evidentiary value can be given to Ext.P6 chemical analysis report. 20. 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. 21. 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: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** 22. 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. 23. The upshot of the above discussion is that the Crl.A No.1479 of 2007 10 conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 63 of the Abkari Act and he is acquitted of the charge. The appellant is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU JUDGE** ab