Sugadhan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 29[TH] DAY OF SEPTEMBER 2021 / 7TH ASWINA, 1943 CRL.A NO. 1444 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1253/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA,** ## **THIRUVANANTHAPURAM** ## **APPELLANT/S:** SUGADHAN, S/O. MRUTHINJAYA PANIKER, KATTACHALKUZHY ALUVILSA PUTHEN VEEDU, VENGANOOR DESOM & VILLAGE, NEYYATTINKARA. BY ADV G.SUDHEER ## **RESPONDENT/S:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SRI. ARAVIND V MATHEW THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1444 OF 2007 2 ## **JUDGMENT** This appeal is filed under Section 374(2) of the Code of Criminal Procedure, against the judgment of conviction and sentence passed by the Additional Sessions Court for the trial of Abkari Act Cases, Neyyattinkara in S.C. No. 1253/2001 dated 4[th] July 2007. 2. The accused/appellant faced trial for the offence punishable under Section 58 of the Abkari Act. 3. The prosecution case in short is that on 04.07.2000 at about 5.30 p.m., the accused was found in possession of 5 litres black jerrycan with 4 litres of arrack in it and a glass tumbler in contravention of the Abkari Act and Rules at Venganoor Desom, Venganoor Village and thereby committed the offence. 4. PW4, the Inspector of Police Vellarada Police Station and PW3, the Police Constable while on patrol duty got reliable information that the accused was selling arrack at CRL.A NO. 1444 OF 2007 3 the side of the Puthukkulam, Vengannor Desom, Venganoor Village. Accordingly, they reached the sport and the accused was intercepted and 5 litres of black jerrycan filled with 4 litres of arrack was seized and the accused was arrested at the spot. 5. The jerrycan with the contraband article in it, as well as the glass tumbler which were marked as MO1 and MO2 were seized. It were sealed and packed in the presence of the witnesses who were examined as PW1 and PW2. Thereafter, PW4 went to the Police Station along with the accused and seized contraband articles and registered crime against the accused under Section 58 of the Abkari Act. Exhibit P4 is the FIR. The accused and seized articles were produced before the Magistrate Court. PW5, Thondi Clerk of the Magistrate Court, drew the sample from the arrack contained in MO1 jar and sent the same for chemical analysis. After chemical analysis, the report was received which was marked as Exhibit P7. The report shows that the 4 CRL.A NO. 1444 OF 2007 sample contained Ethyl Alcohol. After completing investigation, PW5 filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities, committed the case for trial to the Court of Sessions. 6. The accused appeared at the court below. After hearing both sides, the court below framed charge against the accused under Section 58 of the Abkari Act. Charge was read over and explained to the accused, who pleaded not guilty. 7. The prosecution examined PW1 to PW5 and Exhibits P1 to P8 were marked. MO1 and MO2 were identified. On completing the prosecution evidence, the accused was questioned under Section 313 of the Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. No defence evidence was adduced. After trial, the court below found that the accused has committed offence punishable under Section 58 of the Abkari Act and he CRL.A NO. 1444 OF 2007 5 was convicted for the said offence. The accused was sentenced to undergo Rigorous Imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-, in default, to suffer Rigorous Imprisonment for a period of three months as per the impugned judgment. The said judgment is under challenge in this appeal. 8. I heard Sri. Harikrishnan, the learned counsel for the appellant/accused and Sri. Aravind V. Mathew, the learned Public Prosecutor. 9. The learned counsel for the appellant assailed the finding of the guilt passed against the appellant as illegal and unsustainable, contending that no sampling was done at the spot and in the absence of any evidence to show that the very same sample which was allegedly drawn from the contraband articles has reached the the hands of the Chemical Examiner for examination, the conviction cannot be sustained. The learned counsel for the appellant further submitted that the Official with whom the sample was sent CRL.A NO. 1444 OF 2007 6 for chemical analysis, was not mentioned in the forwarding note. The learned counsel also submitted that there is delay of 3 days in producing the material object before the Court and there is no evidence to show that during these three days it was kept in safe custody. 10. It is settled that the prosecution has to prove all the links starting from the seizure of the contraband and drawing of sample from it till it reaches the hands of the Chemical Examiner. This Court in **Gireesh v. State of Kerala** [2019 (4) KLT 79] has held that when the prosecution relies upon the report of the chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. 11. PW3 or PW4 has no case that they drew sample at the spot. Both of them how ever deposed that MO1 and MO2 were properly packed, sealed and labelled at the spot. CRL.A NO. 1444 OF 2007 7 Exhibit P3 Mahazar, does not show that MO1 was in a sealed condition or that there was any seal on them. Exhibit P6 is the property list. It also does not show that MO1 or MO2 was in a sealed condition or that there was any seal on them. Exhibit P6 also does not bear the sample seal. PW5, Thondi Clerk, has been examined to prove that he drew sample from the contraband produced before the Court. But apart from his oral evidence, no where it was recorded that he drew the sample. There is also absolutely no evidence to show that after drawing the sample, it was properly packed, labelled and sealed, apart from his oral testimony. The sample seal was also not produced before Court. It creates doubt as to whether the sample that reached the chemical analyst was the very same sample allegedly taken from the can seized from the accused. Even though material objects reached the Court on 07.07.2020 and the sample was allegedly drawn on the very same day, it was sent for chemical analysis only on 03.08.2020. There is absolutely no valid explanation for the CRL.A NO. 1444 OF 2007 8 delay. Exhibit P2 forwarding note also does not contain the sample seal allegedly affixed by PW5. During trial, the sample seal was not exhibited also. In these circumstances, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample allegedly drawn from the contraband seized from the accused had reached the Chemical Examiner for analysis in a tamper proof condition. In **Moothedath Sivadasan v. State of Kerala** [2021 (2) KLJ 80], this Court recently held that in the absence of any link evidence to show that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the accused. 12. A perusal of Exhibit P2 forwarding note would show that the official with whom the sample was sent for chemical analysis was not mentioned in the forwarding note. This Court in **Kumaran P. v. State of Kerala and Another** CRL.A NO. 1444 OF 2007 9 ## [2016 (5) KHC 632], has 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 o 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 CRL.A NO. 1444 OF 2007 10 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 CRL.A NO. 1444 OF 2007 11 this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof 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". 13. It is also not discernible from Exhibit P2 as to when the learned Magistrate put the initial in the forwarding note. The date is also absent. Since the date was not written by the learned Magistrate when initial was made, it is not clear in Exhibit P6 as to how many days before the despatch of the sample the learned Magistrate put initial in Exhibit P2. Thus the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in 12 CRL.A NO. 1444 OF 2007 question. 14. The aforesaid vital aspects were not taken into consideration by the court below, while appreciating the prosecution evidence. For these reasons, I hold that the conviction and sentence passed by the court below cannot be sustained. In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the Court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH JUDGE** avs