Sumathi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 13[TH] DAY OF OCTOBER 2022 / 21ST ASWINA, 1944 CRL.A NO. 1462 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 25.06.2007 IN SC 705/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` SUMATHI, W/O BALAN, NAYATTUKUNNUMMAL, UNNIKULAM AMSOM, POONUR DESOM, KOYILANDY. ``` ``` BY ADV SRI.NIDHI BALACHANDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT.REKHA S.(SR PP) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1462 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 1462 of 2007 --------------------------------------------Dated this the 13[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 25.06.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode, in Sessions Case No.705 of 2005, 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 20.10.2003 at 6.00 p.m., the appellant/accused was found keeping 1.5 litres of arrack at Unikulam desom, 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 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 ``` Crl.A.No.1462 of 2007 ``` ``` 3 ``` 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 P5 and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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 and convicted her thereunder. 6. Heard Smt. Nidhi Balachandran, 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:- (1) The officer who detected the offence is incompetent to effect the detection and ``` Crl.A.No.1462 of 2007 ``` ``` 4 ``` seizure. (2) The prosecution failed to establish the identity of the person who was carrying the contraband substance at the scene of occurrence. 8. The alleged seizure was effected by a Preventive Officer, attached to Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode (PW1). 9. The learned counsel for the accused contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, a Preventive Officer of Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode. The detection was made on 20.10.2003. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or ``` Crl.A.No.1462 of 2007 ``` ``` 5 ``` such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Preventive Officer, Excise Enforcement and Anti-Narcotic Special Squad, Kozhikode, had no such powers. 10. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 11. The learned counsel for the accused relied on **Suresh** - **v. State of Kerala [2017 (2) KHC 891]** to substantiate his ``` Crl.A.No.1462 of 2007 ``` ``` 6 ``` contentions. While dealing with a similar fact situation this Court in **Suresh's case (supra)** held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 12. The next contention of the counsel for the accused is that the prosecution failed to prove the identity of the person who was carrying the contraband substance at the scene of occurrence. According to the prosecution, the accused could not be arrested from the scene of occurrence as no women Police Constable were available. PW1 and the other official witnesses have no case that they had any previous acquaintance with the accused. In Ext.P1 mahazar, no identifying features of the person who was allegedly carrying the contraband substance were recorded. The independent witness examined to prove the incident proper did not support the prosecution. 13. 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 ``` Crl.A.No.1462 of 2007 ``` ``` 7 ``` 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 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. 14. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 15. 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 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]}. ``` Crl.A.No.1462 of 2007 ``` ``` 8 ``` 16. 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. 17. The conviction and sentence recorded by the trial Court, therefore, cannot be sustained. In the result, the accused is acquitted of the offence alleged. She is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK