Subramanian v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 3[RD] DAY OF AUGUST 2021 / 12TH SRAVANA, 1943 CRL.A NO. 2112 OF 2006** **AGAINST THE JUDGMENT DATED 13.09.2006 IN SC 392/2005 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK NO.III (ADHOC), MANJERI,** **MALAPPURAM** ## **APPELLANT/ACCUSED :** **SUBRAMANIAN AGED 43 YEARS S/O CHANDRAN, AMBILACKAL HOUSE, CHELEMBRA AMSOM AND DESOM, TIRURANGADI TALUK.** **BY ADVS. SRI.R.SUDHISH SRI.M.MANJU** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTING EXCISE INSPECTOR, PARAPPANANGADI, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI.M.C.ASHI, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2112 OF 2006** 2 ## **K. BABU J.** ## **------------------------------------** **Crl.A.No.2112 of 2006** **------------------------------------** Dated this the 3[rd] day of August, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 13.09.2006, passed by the learned Additional Sessions Judge, Fast Track-III (Adhoc), Manjeri in S.C.No.392/2005, the accused has preferred this appeal. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 04.07.2003 at about 06.00 p.m., the accused was found in possession of 1 ½ liters of illicit arrack in a plastic bottle and a glass tumbler near the Ladies Hostel on the Campus of the Calicut University at Tenhippalam in Tirurangadi Taluk. The offence was detected by the Excise Range Inspector, Parappanangadi Range. **CRL.A NO. 2112 OF 2006** 3 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, Parappanangadi. 5. The case was committed to the Sessions Court, Manjeri, from where it was made over to the Trial Court. 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 and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P10 and Mos.1 and 2. 7. 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 **CRL.A NO. 2112 OF 2006** 4 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. The learned trial court, after hearing 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 two years and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.Sudhish, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, **CRL.A NO. 2112 OF 2006** 5 submitted that the prosecution could well establish the charge against the accused. 11. 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** 12. PW1, the Excise Range Inspector, Parappanangadi Range, was on patrol duty on 04.07.2003. At about 06.00 p.m., while the Excise team led by PW1 reached Thenhippalam area, the accused was found in possession of 1 ½ liters of illicit arrack in a plastic bottle and a glass tumbler near the Ladies Hostel on the Campus of the Calicut University. PW1 ascertained that the plastic bottle contained illicit attack. PW1 seized the contraband substance found in the possession of the accused, as per Ext.P3 seizure mahazar. He collected 180 ml of arrack from the bottle in an 180 ml bottle as sample and sealed the same. The accused was arrested from the spot. **CRL.A NO. 2112 OF 2006** **==> picture [7 x 9] intentionally omitted <==** 13. PW2, the Preventive Officer attached to Parappanangadi Excise Range, who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. PWs.3 and 4, the independent witnesses, did not support the prosecution case. PW5 conducted investigation and submitted final report before the Court against the accused. 14. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory: - (a) The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. - (b) Ext.P3 seizure mahazar is silent regarding the nature and description of the seal affixed on the bottle containing the sample. **CRL.A NO. 2112 OF 2006** **==> picture [7 x 9] intentionally omitted <==** (c) There is no satisfactory explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 15. The oral evidence of Pws.1 and 2 is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. Ext.P3, seizure mahazar, is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 16. 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. [vide: **Bhaskaran v. State of Kerala and another** (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 17. Evidence regarding the nature and description of the seal, affixed on the sample bottle at time of drawing the sample, is highly required to enable the Court to satisfy the genuineness of the sample produced in the **CRL.A NO. 2112 OF 2006** 8 court. 18. The learned counsel for the accused/appellant further contended that the prosecution has not adduced convincing evidence to show the date on which the sample was forwarded to the Chemical Examiner's laboratory. 19. Though Ext.P6, the copy of the forwarding note, was countersigned by the learned Magistrate, he had omitted to mention the date on which he affixed his signature thereon. 20. Ext.P10, the certificate of chemical analysis, would show that one sealed 180 ml bottle, containing 180 ml of a clear and colourless liquid, alleged to be arrack was received in the Chemical Examiner's laboratory on 24.07.2003, as per a reference letter No.159/03. It is pertinent to note that the reference letter referred to in Ext.P10 is undated. 21. This Court is in the dark as to the date on which the sample was handed over to the Excise official concerned from the court for delivering the same to the **CRL.A NO. 2112 OF 2006** **==> picture [7 x 9] intentionally omitted <==** Chemical Examiner's laboratory. In such a situation, it was imperative for the prosecution to examine either the Thondy clerk of the court or the Excise official concerned to establish the tamper proof despatch of the sample to the laboratory. 22. It is the admitted case of the prosecution that the sample remained in the custody of the Thondy clerk of the court and Sri.Shivadasan, the Excise Guard who delivered the sample to the Chemical Examiner's laboratory. There is no convincing evidence regarding the period during which the sample remained in their custody. The effect of the non examination of those officials 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** [(1980) 3) SCC 303]). 23. Ext.P10 would show that the sample reached the Chemical Examiner's laboratory on 24.11.2003, but the **CRL.A NO. 2112 OF 2006** 10 same was analysised only on 02.06.2004. 24. The learned counsel for the appellant contended that the delay in analysis of the sample, which has not been explained satisfactorily, is also fatal to the prosecution. While dealing with the question of delay in analysis of the sample this Court in **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.” 25. In the instant case, the delay 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 the **CRL.A NO. 2112 OF 2006** 11 laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 28. 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. Hence, no evidentiary value can be given to Ext.P10 chemical analysis report. 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 **CRL.A NO. 2112 OF 2006** **==> picture [13 x 9] intentionally omitted <==** 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 levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS