Stephen aged 1 year S/O Varghese, Kattukulam Thekkeekra Puthen Veedu, Erinjimampally, Mullalivila, Vellarada, Desom, Vellarada Village, Neyyattinkara v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF SEPTEMBER 2021 / 10TH BHADRA, 1943** **CRL.A NO. 1157 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1190/2001 OF ADDITIONAL S.C.TRIAL OF ABKARI ACT CASES,NEYYATTINKARA, THIRUVANANTHAPURAM APPELLANT/ACCUSED:** **STEPHEN AGED 1 YEARS S/O. VARGHESE, KATTUKULAM THEKKEEKRA PUTHEN VEEDU,, ERINJIMAMPALLY, MULALIVILA, VELLARADA, DESOM, VELLARADA VILLAGE, NEYYATTINKARA.** **BY ADV SUMAN CHAKRAVARTHY** ## **RESPONDENT/COMPLAINANT AND STATE:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **BY ADV M.C. ASHI PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1157 of 2007 2 ## **K. BABU J.** ## **-----------------------------------Crl.A.No.1157 of 2007** **------------------------------------** Dated this the 1[st] day of September, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 28.05.2007, passed by the learned Additional Sessions Judge for the Trial of Abkari Act cases, Neyyattinkara, in SC.No.1190/2001, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 58 of the Kerala Abkari Act. 3. The prosecution case is that on 13.02.2000 at about 04.00 p.m., the accused was found in possession of 7 liters of illicit arrack in a 10 litre can and a glass tumbler at Vellarada in Vellarada village. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Crl.A.No.1157 of 2007 **==> picture [7 x 9] intentionally omitted <==** Act before the Judicial First Class Magistrate III, Neyyattinkara. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the trial court. On appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty and therefore, he came to be tried by the trial court. 5. The evidence of prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P8 and MOs 1 and 2. 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 was 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. On the side of the defence DWs 1 and 2 were examined. The Crl.A.No.1157 of 2007 4 learned trial court, after hearing the arguments addressed from both sides, found the accused guilty of offence under Section 58 of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-. 7. Heard Sri. Suman Chakravarthy, the learned counsel appearing for the appellant/accused and also Sri. M.C.Ashi, the learned Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution has succeeded in establishing the charge against the accused. 10. The only point that arises for consideration Crl.A.No.1157 of 2007 5 is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## **THE POINT** 11. PW5, the detecting officer gave evidence that on 13.02.2000, while on patrol duty, on getting reliable information that the accused was possessing illicit arrack he proceeded to the place of occurrence and found that the accused was carrying a plastic can and a glass tumbler. PW5 verified the can and found that it contained 7 liters of illicit arrack. He seized the contraband substance from the possession of the accused and arrested the accused. PW5 prepared Ext.P1 seizure mahazar. 12. PW3, the Police Constable, who had accompanied PW5 in the search and seizure, supported the case of the prosecution. PW1, an independent witness, supported the prosecution case. PW2, another independent witness, did not supported the prosecution. PW4, the Property Clerk of the Magistrate court concerned, has given evidence that Crl.A.No.1157 of 2007 6 he received the properties before the court after verifying the seal affixed on them. She further stated that on 14.20.2000 she had drawn 180ml of liquid from MO1 can into an empty bottle and affixed the metal seal of the court and sent to the laboratory on 22.02.2000 through a Police Constable No. 6722, along with Ext.P3 forwarding note, countersigned by the learned Magistrate. 13. The learned counsel for the appellant/accused contended that the prosecution has not established that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the accused relied on the following circumstances to substantiate his contentions: - (a) No sample was drawn by the detecting officer at the scene of occurrence. - (b) No specimen impression of the seal stated to have been used by the detecting Crl.A.No.1157 of 2007 7 officer was produced before the court. (c) The drawing of the sample by the Property Clerk has no sanction of law. 14. PW5, the detecting officer has given evidence that he had affixed seal on the can containing the contraband substance recovered from the possession of the accused. Exhibit.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any mention as to the act of sealing by the detecting officer at the scene of occurrence. Exhibit.P1, sezure mahazar, is silent regarding the nature and description of the seal stated to have been affixed by the detecting officer. The detecting officer has not given evidence as to the nature of the seal used by him at the scene of occurrence. In **Bhaskaran k.v. State of Kerala and another** (2020 KHC 5296) and in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held that the detecting officer has to give evidence as to the nature of the seal affixed and Crl.A.No.1157 of 2007 8 the seizure mahazar shall contain the description of the seal used. The specimen of the seal used by the detecting officer is required to be produced before the court to enable the court to satisfy the genuineness of the contraband substance produced before the court. 15. PW4 gave evidence that she had verified the contraband substance and ascertained that the seal was intact. PW5 gave evidence that he had forwarded the specimen of the seal, used by him at the scene of occurrence, to the court. 16. I have carefully gone through the materials placed before the court. There is nothing to show that the specimen of the seal stated to have been used by the detecting officer was either produced or marked before the court. In the absence of any materials to show that the specimen impression of the seal used by the detecting officer was produced before the court, the genuineness of the contraband substance produced is doubtful. Crl.A.No.1157 of 2007 9 17. PW4, the Property Clerk of the court, gave evidence that she had drawn the sample after breaking the seal on MO1 can. She gave evidence that she collected sample as per the directions of the learned Magistrate. It is pertinent to note that no contemporaneous document had been prepared to show that the learned Magistrate had given any direction to take a specified quantity of the contraband substance as sample and forward the same to the laboratory. While giving evidence, PW4 further clarified that she was not sure as to whether the bottle used for collecting the sample was sterilized or not. 18. Exhibit.P3, copy of the forwarding note, contains no specimen impression of the seal used. Exhibit.P2 is a copy of the covering letter by which the bottle containing the sample was forwarded to the Chemical Examiner's laboratory. The impression of the seal affixed against the space for mentioning the specimen seal in Exhibit P2, is not legible. Crl.A.No.1157 of 2007 10 The impression contained in Exhibit.P2 cannot be used for verifying the genuineness of the sample. Exhibit.P6 would further show that, by letter dated 22.02.2000 of the Judicial First Class Magistrate III, Neyyatinakara, one sealed bottle containing 180ml of clear and colourless liquid alleged to be country liquor was received in the laboratory on 22.02.2000 itself. The date of Ext.P2 letter is seen corrected as 22.02.2000 instead of 29.02.2000. This also creates some suspicion as to the genuineness of the sample that was tested in the Chemical Examiner's laboratory. 19. The prosecution failed to establish that the specimen impression had been provided to the Chemical Examiner for comparison. While dealing with a similar circumstance, in **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that in the absence of evidence as to the production of specimen impression of the seal to the Chemical Examiner for comparison, no sanctity can be attached Crl.A.No.1157 of 2007 11 to the report of the Chemical Examiner. The resultant conclusion is that no evidentiary value can be even given to Ext.P6 certificate of chemical analysis. 20. 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. 21. 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: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 22. In the instant case, the prosecution was Crl.A.No.1157 of 2007 12 unable to establish 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. 23. There is yet another reason to grant benefit of doubt to the accused. The defence challenged the alleged arrest of the accused. The arrest memo has not been produced in this case. Prosecution has not offered any explanation as to the non production of the arrest memo. Prosecution has no case that arrest memo was omitted to be produced before the court. PW5 has not given evidence that he had prepared arrest memo on arresting the accused. He has also not given any evidence that intimation regarding the arrest was given to any near relative or friend of the accused. In the absence of any arrest memo or arrest intimation brought out in evidence, the alleged arrest is doubtful. Crl.A.No.1157 of 2007 13 24. While dealing with a similar fact situation, this Court, in **Ramankutty v. Excise Inspector [2013** ## **(3) KHC 308],** held thus: “It is pertinent to note that the 'arrest memo', a crucial document which is required to be prepared contemporaneously at the time of arrest to show the genuineness of arrest, is seen not produced before the trail court. Prosecution has no case that though the arrest memo had been prepared at the time of the arrest and seizure, it could not be produced before the trial court. So it can be safely concluded that it was not prepared at the time of alleged arrest. If the arrest is not proved beyond reasonable doubt, the entire case set up by the prosecution will fall to ground”. 25. **Ramankutty v. Excise Inspector** (supra) was followed by this court in **Bhaskaran.k v. State of Kerala and another[supra]** . The Court below has ignored these vital aspects while entering into the conviction. Hence, the accused is entitled to benefit of doubt. 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 Crl.A.No.1157 of 2007 14 appellant/accused is therefore not guilty of the offence punishable under Section 58 of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. This Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** rps/