SOBHANA v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944 CRL.A NO. 2181 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1047/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` SOBHANA D/O NARAYANAN,PANACHIYIL, KUNNAMANGALAM, KOZHIKODE. ``` ``` BY ADVS. T R HARIKUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP.BY ITS PUBLIC PROSECUTOR, HIGH COURT, OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2181 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 04.09.2008 passed by the Additional Sessions Court (Fast Track (Adhoc-II)), Kozhikode, in Sessions Case No.1047/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 03.05.2004 at 2.00 p.m., the accused was found in possession of 1½ litres of arrack in a Can on the side of the PoyyaPilassery road at Kunnamangalam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before ``` CRL.A NO. 2181 OF 2008 ``` ..3.. the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P6 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act ``` CRL.A NO. 2181 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** and convicted her thereunder. 6. Heard Sri T.R. Harikumar, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- - (i) The prosecution has not succeeded in establishing the identity of the person who was carrying the contraband substance at the scene of occurrence. - (ii) The prosecution has not established the tamper-proof despatch of the sample from the Court to the Laboratory. 8. The alleged seizure was effected on 03.05.2004. The case of the prosecution is that the appellant/accused could not be arrested from the scene of occurrence as no woman police constable/woman Excise guard was ``` CRL.A NO. 2181 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** available. In Ext.P1 seizure mahazar, the detecting officer has not narrated any features to identify the person who had carried the contraband substance. The official witnesses who identified the accused in the box had no case that they had previous acquaintance with the accused. They identified the accused in Court in the year 2008 after a long lapse of four years. 9. It is well settled that 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 powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: **Kanan and others v. State of Kerala** [AIR 1979 SC 1127)], **Jameel v. State of Maharashtra** [AIR 2007 SC 971], **Raja v. State by Inspector of Police** [AIR 2020 (SC) 254], **State (Delhi** ``` CRL.A NO. 2181 OF 2008 ``` ..6.. **Administration) v. V.C.Shukla and another** [AIR 1980 (SC) 1382], **Mohd.Abdul Hafeez v. State of AP** [AIR 1983 (SC) 367]. So, on this ground alone the prosecution must fail. 10. The learned counsel for the appellant/accused contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by different officials. No property list was produced and marked in this case. There is nothing to show the date on which the articles were produced before the Court and the date on which the sample was forwarded to the Chemical Examiner’s Laboratory. 11. Ext.P4 Certificate of Chemical Analysis shows that the sample was delivered to the laboratory on 18.05.2004 through an Excise Guard by name Shri. Abdul Jabbar. The sample remained in the custody of the Property Clerk of the Court, the Excise official who received the sample from the Court and the Excise Guard ``` CRL.A NO. 2181 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** who delivered the same to the Laboratory. None of these witnesses were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The inevitable consequence of this omission is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. The necessary conclusion is that Ext.P4, Certificate of Chemical Analysis has no evidentiary value. 12. 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 corelated. 13. 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 ``` CRL.A NO. 2181 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **Sasidharan v. State of Kerala** [2007(1) KHC 275]. 14. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 15. 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 found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, ## (i) the Appeal is allowed ; ``` CRL.A NO. 2181 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offence alleged; - (iv) She is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to her as per law. Sd/- **K. BABU, JUDGE** kkj