Sivarajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **TUESDAY, THE 14TH DAY OF JULY 2020 / 23RD ASHADHA, 1942** ## **CRL.A.No.497 OF 2007** **AGAINST THE JUDGMENT IN SC 1276/2000 DATED 20-02-2007 OF ADDITIONAL SESSIONS COURT (FAST TRACK - III), THIRUVANANTHAPURAM** ## **APPELLANT:** **SIVARAJAN, S/O. KUNJAN, CHERUVILAPUTHEN VEEDU, SANKARANMUKKIL, MANAMBOOR VILLAGE, CHIRAYINKIL.** **BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.LAKSHMI RENJITH SRI.PRABHU VIJAYAKUMAR SRI.RENJITH B.MARAR** ## **RESPONDENT:** **STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10-07-2020, THE COURT ON 14-07-2020 DELIVERED THE FOLLOWING:** Crl.A.No.497/2007 2 ## **R.NARAYANA PISHARADI, J** ************************ Crl.A.No.497 of 2007 -----------------------------------------Dated this the 14[th] day of July, 2020 ## **J U D G M E N T** The appellant is the accused in the case S.C.No.1276/2000 on the file of the Court of the Additional Sessions Judge, Thiruvananthapuram. 2. The prosecution case is that, on 25.03.1998, at about 13:30 hours, at the road in front of Mangala Herbal Beauty Parlour at the place Manamboor, PW3 Excise Inspector found the appellant/accused in possession of a can containing two litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The appellant/accused pleaded not guilty to the offence and he claimed to be tried. Crl.A.No.497/2007 3 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P9 documents and also MO1 material object. Ext.C1 document was also marked in the case. No evidence was adduced by the accused. 5. The trial court found the appellant/accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of three months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard the learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW3 is the Excise Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW5 is the Preventive Officer who was in the excise party led by PW3. His evidence corroborates the testimony of PW3 with regard to Crl.A.No.497/2007 4 the material particulars of the occurrence. PW1 and PW2 are the independent witnesses examined by the prosecution. They did not support the prosecution case. They admitted their signature in Ext.P1 seizure mahazar. But they have not given evidence that any can containing arrack was seized from the possession of the accused. 9. Ext.P8 is the chemical examination report received in respect of the sample of liquid which was forwarded for chemical analysis. It shows that the sample of liquid contained 18.90% by volume of ethyl alcohol. 10. Learned counsel for the appellant contended that there is no reliable evidence adduced by the prosecution to prove that the very same can containing arrack which was allegedly seized from the possession of the accused was produced before the court and that sample of liquid was taken from the very same can and forwarded for chemical analysis. 11. PW3 has given evidence that he seized the can containing arrack from the possession of the accused. However, he has not given any evidence that the can containing the arrack Crl.A.No.497/2007 5 was sealed at the spot of the occurrence or subsequently. 12. PW3 has given evidence that he registered Ext.P6 crime and occurrence report against the accused. The description of the can given in Ext.P6 report does not show that there was any seal on it or that it was in a sealed condition. 13. Ext.P7 is the property list prepared by PW3 for producing the material objects before the court. The description of the can given in Ext.P7 property list also does not show that the can was in a sealed condition or that there was any seal on it. 14. Ext.C1 is the copy of the extract of the property register kept in the Magistrate's Court concerned. This document was marked through PW6, the property clerk of the Magistrate's Court. The description of the can given in Ext.C1 document also does not show that there was any seal on the can which was produced before the court or that it was in a sealed condition. 15. In the aforesaid circumstances, there is no assurance that the very same can containing liquid which was allegedly seized from the possession of the accused was produced before the court by PW3 as per Ext.P7 property list. When there was no Crl.A.No.497/2007 6 seal on the can which was produced before the court, tampering of the liquid contained in it, before production of it before the court, cannot be ruled out. 16. PW6 has given evidence that, it was from the can which was produced from the excise office, that sample of liquid was taken and forwarded for analysis. In the absence of any reliable evidence to find that the very same can allegedly seized from the possession of the accused was produced before the court, it cannot be found that Ext.P8 chemical examination report relates to the liquid contained in the can which was seized from the possession of the accused. 17. PW6 has given evidence that sample of liquid from the can was drawn as per the order of the learned Magistrate. The prosecution has not produced copy of any such order passed by the learned Magistrate. PW6 has also given evidence that sample was drawn in the presence of the learned Magistrate. No record was prepared and kept for drawing sample. In the absence of any such record relating to drawing of sample, it cannot be found that the sample was drawn in the presence of Crl.A.No.497/2007 7 the Magistrate. ## 17. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: _"The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related"._ 18. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the Crl.A.No.497/2007 8 accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 19. The trial court has not properly appreciated the aforesaid vital aspects. In such circumstances, the conviction entered against the appellant/accused cannot be sustained. 21. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** **jsr** **True Copy** **PS to Judge**