Shibu and Prasannan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 30[TH] DAY OF JULY 2021 / 8TH SRAVANA, 1943** **CRL.A NO. 1612 OF 2007** **AGAINST THE JUDGMENT DATED 10.08.2007 IN SC.NO.336/2006 OF ADDITIONAL DISTRICT & SESSIONS JUDGE (ADHOC), FAST TRACK** **COURT-III, PATHANAMTHITTA** ## **APPELLANTS/ACCUSED NO.1 & 2:** **1 SHIBU, S/O. MANI, AGED 28 YEARS NIRAVILKIZHAKKETHIL VEEDU, PAKKANDAM, KOODAL VILLAGE, KOODAL MURI, PATHANAMTHITTA.** **2 PRASANNAN, S/O.RAMACHANDRAN, AGED 34 YEARS THENGUVILAYIL VEEDU, ATHIRUMKAL, KOODAL VILLAGE & MURI.** **BY ADV S.MUHAMMED HANEEFF** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY SUB INSPECTOR OF POLICE, KOODAL POLICE STATION (CRIME NO.112/2003 OF KOODAL POLICE STATION) REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. M.S. BREEZ (SR.P.P)** ## **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1612 OF 2007** 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.1612 of 2007** **------------------------------------** Dated this the 30[th] day of July, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 10.08.2007, passed by the learned Additional District and Sessions Judge, (Adhoc), Fast Track Court-III, Pathanamthitta, in SC.No.336/2006. 2. By the impugned judgment the appellants (accused Nos.1 and 2) were convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that the appellants and the other accused in this case were found transporting about 20 liters of illicit arrack in a 20 liter black Jerrycan in the Jeep bearing Registration No.KL-05/9551 along the Kulthuman Pothupara public road on 18.06.2003 at about 01.20 a.m. 4. After completion of the investigation, final **CRL.A NO. 1612 OF 2007** **==> picture [7 x 9] intentionally omitted <==** report was submitted against the appellants and the other accused in this case for the offence punishable under Sections 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-I, Pathanamthitta. 5. The case was committed to the Sessions Court, Pathanamthitta, from where it was made over to the Trial Court. On appearance of the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The appellants pleaded not guilty and therefore, they came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P14 and Mos.1. 7. 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 was evidence against the accused and hence they were called upon to enter on their defence and **CRL.A NO. 1612 OF 2007** 4 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 appellants are guilty of offence under Section 8(2) of the Abkari Act and they were convicted thereunder. The appellants were sentenced to undergo rigorous imprisonment for a term of one and half years each and to pay a fine of Rs.1,00,000/- each. 8. Heard Sri.S.Muhammed Haneef, the learned counsel appearing for the appellants and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The counsel for the appellants contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Senior Public Prosecutor, per contra, submitted that the prosecution could well **CRL.A NO. 1612 OF 2007** 5 establish the charge against the accused. 11. 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** 12. PW4, the SI of Police, Koodal Police Station, has given evidence that on 18.06.2003, the Police team led by him intercepted the Jeep bearing Registration No.KL-05/9551 at Kulthuman in Pathanamthitta District. Three persons were found in the Jeep. The man who was driving the vehicle ran away from the scene on seeing the Police party. PW4 inspected the vehicle and found a 20 liter plastic Can containing 20 liters of illicit arrack. He prepared Ext.P1 seizure mahazar. The appellants were arrested from the spot. The vehicle was taken in to custody by PW3. He registered Ext.P8 FIR on the basis of Ext.P1 seizure mahazar against the appellants and the other accused. PW4 had collected 180 ml of illicit arrack from the Can in a 375 ml bottle as sample and sealed the **CRL.A NO. 1612 OF 2007** **==> picture [7 x 9] intentionally omitted <==** same. PW1, the Police Constable, who had accompanied PW4, has given evidence in support of the version given by PW4. 13. PW2, an independent witness, did not support the prosecution case. PW3 is the registered owner of the vehicle. PW5, the property clerk of the Judicial First Class Magistrate Court, Pathanamthitta, received the properties when produced before the court. 14. The learned counsel for the appellants contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. 15. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions: (a) PW4, the detecting officer and PW1, the other official witness, have not given evidence as to the nature and description of the seal affixed on **CRL.A NO. 1612 OF 2007** 7 the bottle containing the sample. - (b) Ext.P1 seizure mahazar, does not contain any narration as to the nature and description of the seal affixed on the bottle containing the sample. - (c) The specimen impression of the seal used by the detecting officer was not produced before the court and forwarded to the Chemical Examiner's laboratory. 16. PWs.1 and 4 have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, seizure mahazar, does not contain the specimen impression of the seal stated to have been affixed on the bottle containing the sample. 17. 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 **CRL.A NO. 1612 OF 2007** **==> picture [7 x 9] intentionally omitted <==** 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. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296) **, Krishnadas v. State of Kerala** (2019 KHC 191), **Achuthan v. State of Kerala** (ILR 2016 (2) Ker. 145)]. 18. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same had been provided to the Chemical Examiner. The specimen impression of the seal has not been produced before the court and forwarded to the Chemical Examiner's laboratory. 19. Ext.P10, the copy of the forwarding note, does not contain the specimen impression of the seal affixed on the bottle containing the sample. The inevitable conclusion is that the prosecution has not succeeded in establishing that the specimen impression of the seal **CRL.A NO. 1612 OF 2007** 9 had been forwarded to the Chemical Examiner's laboratory. 20. While considering a fact situation in which the prosecution failed to establish that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner, this Court in **Rajamma** ## **v. State of Kerala** [2014 (1) KLT 506], 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”. 21. Ext.P10, the copy of the forwarding note, is also silent about the name of the person with whom the sample was sent for analysis. 22. There is also no convincing evidence to show as **CRL.A NO. 1612 OF 2007** **==> picture [13 x 9] intentionally omitted <==** to through whom the sample was produced before the court. There is lack of evidence as to the official with whom the sample was sent to the Chemical Examiner's laboratory. 23. Ext.P13, certificate of Chemical analysis, shows that the sample was received in the laboratory on 21.06.2003 through the Police Constable No.1622. 24. PW5, the property clerk of the court, has not given evidence as to the person with whom the sample was forwarded to the Chemical Examiner's laboratory and also as to whether the specimen impression of the seal was forwarded to the laboratory. 25. Ext.P13, certificate of Chemical analysis, certifies that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any evidence to show, the production of the specimen impression of the seal affixed on the bottle containing the sample before the court and forwarding of the same to the Chemical Examiner's laboratory, the above **CRL.A NO. 1612 OF 2007** 11 referred certification by the Chemical Examiner in Ext.P13 cannot be accepted. 26. In view of the above discussed infirmities, no evidentiary value can be attached to Ext.P13, certificate of Chemical analysis. 27. Ext.P13, certificate of Chemical analysis, shows that the sample reached the laboratory on 21.06.2003 and the same was subjected to analysis only on 24.04.2004. The delay in the analysis of the sample has not been satisfactorily explained by the prosecution. 28. While dealing with the question of delay in analysis of the sample 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 **CRL.A NO. 1612 OF 2007** 12 explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 29. In view of the specific challenge of the appellants to the effect that the prosecution failed to establish that the sample was despatched to the laboratory in a tamper-proof condition the prosecution ought to have examined the Police official who received the sample from the court and delivered the same to the Chemical Examiner's laboratory. Since Ext.P10, the copy of the forwarding note, is silent with regard to the person with whom the sample was forwarded to the Chemical Examiner's laboratory and the property clerk of the court failed to give evidence as to the person who received the sample from the court, the prosecution ought to have examined the Police official concerned to establish the tamper-proof despatch of the sample to the laboratory. 30. 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 **CRL.A NO. 1612 OF 2007** 13 sample seized and that tested have to be co-related. 31. 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. (vide: **Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 32. 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 are entitled to benefit of doubt arising from the absence of link evidence as discussed above. 33. 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 appellants/accused are therefore not **CRL.A NO. 1612 OF 2007** **==> picture [13 x 9] intentionally omitted <==** guilty of the offence punishable under Section 8(2) of the Abkari Act. They are acquitted of the charge levelled against them. They are set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS