Shiji George v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** ## **CRL.A NO. 2087 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 423/2007 OF SPECIAL COURT** **(NDPS ACT CASES), THODUPUZHA, IDUKKI** ## **APPELLANT/S:** **SHIJI GEORGE, S/O.JOY, CHENGALIKAVIL HOUSE, MULLARINGADUKARA, VANNAPURAM VILLAGE, THODUPUZHA.** **BY ADV SRI.P.K.SOYUZ** ## **RESPONDENT/S:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, REPRESENTING BY EXCISE INSPECTOR, EXCISE RANGE, THODUPUZHA** **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 2087 OF 2008 -2- ## **K. BABU, J.** ## **====================== Crl.A No.2087/2008** **====================== Dated this the 5[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated** **22.08.2008, passed by the Additional Sessions Judge/Special Court for NDPS Act cases, Thodupuzha, in SC No.423/2007, the accused has preferred this appeal.** **2. The trial court convicted the** **accused for the offence punishable under Section 55(g) of the Abkari Act and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-.** **3. The prosecution case is that on 15.12.2005 at 5.10 p.m., the accused was** CRL.A NO. 2087 OF 2008 -3- **found in possession of 35 litres of wash, in the property possessed by him, for the propose of manufacturing illicit arrack.** **4. The Excise Inspector, Thodupuzha (PW5) detected the offence. PW6 conducted investigation and final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before Judicial First Class Magistrate Court-I, Thodupuzha. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court/Special Court for NDPS Act cases, Thodupuzha. On appearance of the accused,** **charge was framed against him for the offence punishable under Section 55(g) of** CRL.A NO. 2087 OF 2008 -4- **the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offence.** **5. To prove the case against the accused, prosecution examined PWs1 to 6 and proved Exts.P1 to P9. MO1 and MO2 were also marked from the side of the prosecution.** **6. 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 total 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** CRL.A NO. 2087 OF 2008 -5- **evidence, if any, he may have in support thereof. The trial court after hearing arguments addressed from both sides passed the impugned judgment.** **7. Heard Sri.P.K.Soyuz, the learned counsel appearing for the appellant and Sri.M.S.Breez, the learned Public Prosecutor.** **8. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment:** **a) The prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance.** **b) The prosecution also failed to** **establish that the contraband substance** CRL.A NO. 2087 OF 2008 -6- **allegedly recovered from the place of occurrence ultimately reached the hands of the public analyst.** **c) The inordinate delay in completing** **the investigation has not been** **satisfactorily explained.** **9. The learned Public Prosecutor, per contra, submitted that the prosecution successfully established the charge against the accused.** **10. 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** **11. PW5, the Excise Inspector,** CRL.A NO. 2087 OF 2008 -7- **Thodupuzha detected the offence. He has given evidence that on 15.12.2005 at 5.10 p.m., on getting reliable information that the accused was in possession of wash in the landed property in his possession at Changalikkavu, he along with other excise officials reached the property and found a man in possession of a blue can. He further stated that on seeing the excise party, the man who was in possession of the can ran away from the scene. Though the excise officials attempted to apprehend him, they could not succeed. PW5 further deposed that he came back to the place of occurrence and seized the contraband substance (wash) contained in the can. He collected 500 ml** CRL.A NO. 2087 OF 2008 -8- **of wash from the can in a bottle and sealed the same. He prepared Ext.P1 seizure mahazer. PW5 prepared Ext.P5, crime and occurrence report, on the basis of Ext.P1 mahazar and produced the articles seized before the court on the next day.** **12. PWs 1 and 2, the independent witnesses, did not support the prosecution case. PW6, Excise Inspector, Thodupuzha, conducted investigation. PW4, the Thondi Clerk attached to Judicial First Class Magistrate Court-I, Thodupuzha gave evidence that he received thondi articles from PW5.** **13. The learned counsel for the appellant contended that the prosecution** CRL.A NO. 2087 OF 2008 -9- **failed to establish the identity of the person, who was allegedly possessing the contraband substance at the place of occurrence. PWs 1 and 2, the independent witnesses, did not support the case of the prosecution that the accused was found in possession of the contraband substance as alleged. PW5 would say that when he reached the place of occurrence, the man who was found in possession of the can ran away from there. PW5 admitted that he had no previous acquaintance with the accused. PW5 never had an opportunity to see the accused after the incident. Going by the evidence of PW5, he had only fleeting glimpse of the person ran away from the place of occurrence. He** CRL.A NO. 2087 OF 2008 -10- **identified the accused in the box on 19.07.2008, approximately after three years. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during trial. Where a witness identifies an accused, who is not known to him in the court, for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation (vide: Jameel v. State of Maharashtra [AIR 2007 (SC) 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], Kanan and Others v. State of Kerala (AIR 1979 (SC) 1127), State (Delhi** CRL.A NO. 2087 OF 2008 -11- **Administration) v. V.C. Shukla and another [AIR 1980 (SC) 1382], Mohanlal Gangaram Gehani v. State of Maharashtra [AIR 1982 (SC) 839], Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]). Hence, the identification of the accused by PW5 cannot be accepted as it is absolutely valueless. Resultantly, the prosecution failed to establish the identity of the person who had allegedly possessed the contraband substance at the place of occurrence.** **14. The learned counsel for the appellant further relied on the following circumstances to contend that the prosecution failed to establish that the** CRL.A NO. 2087 OF 2008 -12- **contraband substance allegedly recovered from the scene of occurrence ultimately reached the Chemical Examiner's laboratory.** **a) Ext.P1, seizure mahazar, the contemporaneous document prepared by PW5, does not contain any narration as to the nature and description of the seal affixed on the sample bottle.** **b) PW5, the detecting Officer, has failed to give evidence as to the nature and description of the seal affixed on the bottle.** **c) The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for chemical analysis.** **d) The learned Magistrate failed to** CRL.A NO. 2087 OF 2008 -13- **write the date on which he countersigned** **the forwarding note.** **e) The inordinate delay in analysing the sample has not been explained.** **15. The detecting Officer (PW5), who** **had drawn the sample, has not given evidence as to the nature of the seal affixed on the bottle containing the sample. He has also not mentioned the nature of the seal used in the seizure mahazar (Ext.P1) prepared at the scene of occurrence.** **16. While considering a fact situation in which there was no evidence as** **to the nature of the seal affixed on the sample bottle and the seizure mahazar was silent about the nature of the seal, this** CRL.A NO. 2087 OF 2008 -14- ## **Court in Bhaskaran v. State of Kerala and another (2020 KHC 5296) held thus;** “21. 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 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 Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied)” **17. The learned counsel for the** CRL.A NO. 2087 OF 2008 -15- **appellant further contended that in the absence of the name of the person with whom the sample was sent for analysis and the learned Magistrate failed to write the date on which he has signed the forwarding note, it was imperative for the prosecution to establish the tamper proof despatch of the sample to the laboratory by examining the Thondi Clerk of the court or the Excise Guard concerned. In the instant case, Ext.P8 forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Though the learned Magistrate has put his initials, he has omitted to mention the date on which he made the initials. Though the thondi clerk was** CRL.A NO. 2087 OF 2008 -16- **examined as a witness (PW4), he has not given any evidence as to the despatch of the sample. He only gave evidence as to the receipt of the sample when produced. In Kumaran v. State of Kerala [2016(4) KLT** **718], this Court, while dealing with a similar fact situation, held thus:** **“7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding** CRL.A NO. 2087 OF 2008 -17- **note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”** **18. In the absence of any evidence as to the person with whom the sample was sent for analysis and in view of the lack of** CRL.A NO. 2087 OF 2008 -18- **clarity as to the date on which the Magistrate put his initials, this Court must conclude that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory.** **19. The learned counsel for the appellant/accused further contended that the inordinate delay in subjecting the sample for analysis at the lab, which remains unexplained, is also fatal to the prosecution. Ext.P9 certificate of chemical analysis shows that the sample reached the laboratory on 23.12.2005, but the same was analized only on 18.12.2006.** **20. On the question of delayed examination of the sample, this Court in** CRL.A NO. 2087 OF 2008 -19- ## **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 explanation. These are all suspicious aspects, the benefit of which must go to the accused.” **21. In the instant case, absolutely** **there is no explanation for the delayed examination of the sample, the benefit of** **which must go to the accused. 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** CRL.A NO. 2087 OF 2008 -20- **sample tested was the contraband substance, cannot be conclusive proof by itself. The sample seized and that tested have to be corelated.** **22. In the instant case, the prosecution miserably failed to establish the link evidence connecting the accused with the contraband substance. Relying on State of Rajasthan v. Daulat Ram [(1980) 3 SCC 303], this Court in Sathi v. State of Kerala [2007(1) KHC 778] held that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analyed in the chemical examiner's laboratory was the very same sample which was drawn from the bulk** CRL.A NO. 2087 OF 2008 -21- **quantity of the alleged contraband substance said to have been possessed by the accused.** **23. A person has a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. The court below has ignored this basic principle and recorded the impugned conviction and sentence, which are not sustainable.** **In the result, this appeal is allowed. The accused is acquitted of the offence under Section 55(g) of the Abkari Act. The accused is set at liberty.** Sd/-/- **K. BABU, JUDGE** STK