SIVAN S/O AYYAPPAN v. STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 26[TH] DAY OF JULY 2021 / 4TH SRAVANA, 1943** **CRL.A NO. 2345 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 189/2006 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC-i), PALAKKAD, PALAKKAD** ## **APPELLANT/ACCUSED:** SIVAN S/O. AYYAPPAN, POOMKOTTIL HOUSE, CHETHALLUR, THACHANATTUKARA, MANNARKKAD, PALAKKAD DISTRICT. BY ADV BABU S. NAIR ## **RESPONDENT/STATE:** THE STATE OF KERALA REP. BY THE EXCISE INSPECTOR, MANNARKKAD EXCISE RANGE - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. BY ADV SRI. M.S. BREEZ (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2345 of 2007 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.2345 of 2007** --------------------------------------- Dated this the 26[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 23-11-2007, passed by the learned Additional Sessions Judge (Adhoc-I), Palakkad in S.C No.189/2006, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under section 8(2) of the Abkari Act. 3. The prosecution case is that on 19-08-2004 around 6.00 p.m the accused was found in possession of 4 litres of arrack in a 5 litre white can near Pottikulampadam on the ChethalloorNaranathubranthan Kunnu Road in Thachanattukara Village. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Mannarkkad. The case was committed to the Sessions Court, Palakkad from where it was made over to the 3 Crl.A No.2345 of 2007 Additional Sessions Court (Adhoc-I), Palakkad. On appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MOs 1 to 3. 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 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 trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 2 years and to pay a fine of Rs.1 Lakh under section 8(2) of the Abkari Act. Crl.A No.2345 of 2007 4 7. Heard Sri.Babu.S.Nair, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused, was actually subjected to analysis at the Chemical Examiner’s laboratory. The learned counsel further contended that there is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish 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/appellant are sustainable or not. ## **The Point** 11. PW1, the Excise Preventive Officer, Mannarkkad Excise Range Office, detected the offence. PW1 gave evidence that on Crl.A No.2345 of 2007 5 19-08-2004 around 6.00 p.m while the Excise team led by him was on patrol duty, the accused was found in possession of 4 litres of illicit arrack in a 5 litre can and a glass tumbler having a capacity of 150 ml near Pottikulampadam in Thachanattukara Village. 12. PW1 seized the contraband substance found in the possession of the accused as per Ext.P1 seizure mahazar and collected 200 ml of arrack from the can in a 375 ml bottle as sample and sealed the same. The accused was arrested by PW1. 13. PW2, the Excise guard who had accompanied PW1 during the time of arrest and seizure, supported the version of PW1. 14. PW4, the independent witness, also supported the prosecution version. 15. PW5, the then Excise Inspector, Mannarkkad Excise Range, conducted part of the investigation. PW6 completed the investigation and submitted final report. 16. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the Crl.A No.2345 of 2007 6 ## accused, eventually reached the Chemical Examiner’s laboratory. 17. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: - (i) PW1, the detecting officer and the Excise guard (PW2), who had accompanied PW1, have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (ii) Exhibit P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (iii) The copy of the forwarding note does not contain the name of the person with whom the sample was sent to the Chemical Examiner’s laboratory. 18. The oral evidence of PW1, the detecting officer and PW2, the Excise guard who had accompanied PW1, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. Exhibit P1, seizure mahazar, does not contain the specimen impression of the seal stated to have been affixed on the Crl.A No.2345 of 2007 7 bottle containing the sample. 19. 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 detecting officer is expected to tell the specific description of the seal said to have been affixed on the bottle containing the sample [Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296)]. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed by the detecting officer. 20. The learned counsel for the accused contended that there is no evidence to show the date on which the properties including the sample were produced before the court. PW5, the then Excise Inspector, Mannarkkad Excise Range, gave evidence that he had produced the properties including the sample before the court. But his evidence is silent as to the date on which the properties including the sample were produced before the court. The list of properties sent to the Magistrate has not been produced before the court and 8 Crl.A No.2345 of 2007 marked. In the deposition of PW5 there is a mention that the property list was marked as Ext.P6 through him. But Ext.P6 is the copy of the forwarding note. This Court is in the dark as to the date on which the articles including the sample were produced before the court. This creates serious doubt on the genuineness of the sample stated to have been produced before the court. 21. Exhibit P6, the copy of the forwarding note, is silent regarding the name of the person with whom the sample was sent for analysis. Exhibit P8, the certificate of chemical analysis, would show that the sample was received in the laboratory through the Excise guard Sri.Surendran. The learned Magistrate, who put initial in the copy of the forwarding note, omitted to write the date on which the initial was made, which is normally expected in a case like this. There is no material to show as to who received the sample from the court and on which date. In such a situation, the prosecution ought to have examined the thondi clerk of the court or the Excise guard concerned to prove the tamper-proof despatch of the sample to the laboratory. While dealing with a similar fact situation this Court in _**Kumaran v.**_ Crl.A No.2345 of 2007 9 ## _**State of Kerala**_ [2016 (4) KLT 718], 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 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 tamperproof despatch of the sample to the laboratory and consequently, the tamper-proof 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.”_ 22. It is the admitted case of the prosecution that the sample changed several hands before reaching the Chemical Examiner’s laboratory. The sample remained in the custody of the official concerned of the court, the Excise official who received the sample Crl.A No.2345 of 2007 10 from the court and the Excise guard who delivered the sample to the laboratory. None of the witnesses were examined by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period- a fact which had to be proved affirmatively by the prosecution (Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314]. 23. In the absence of any convincing material to show that the sample reached the Chemical Examiner's laboratory in a tamper-proof condition, no evidentiary value can be attached to Ext.P8 certificate of chemical analysis. Exhibit P8, certificate of chemical analysis, would show that the sample reached the laboratory on 26-08-2004. But the sample was analysed only on 21-11-2005. 24. The learned counsel for the accused contended that the delay in the analysis of the sample has not been satisfactorily explained by the prosecution. This Court _**Krishnadas v. State of Kerala**_ [2019 KHC 191] held as follows: _“6. Ext.P5 report of analysis shows that the sample was received at_ Crl.A No.2345 of 2007 11 _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.”_ 25. In the instant case, the delay of more than 1 year in the analysis of the sample remains unexplained. 26. 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 the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 27. 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 contraband substance said to have been seized from the possession of the accused {Vide : _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 28. In the instant case, the prosecution was unable to establish Crl.A No.2345 of 2007 12 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 as discussed above. 29. 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 appellant/accused is therefore not guilty of the offence punishable under Section 8(2) 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