Sundaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 19[TH] DAY OF JULY 2021 / 28TH ASHADHA, 1943** **CRL.A NO. 2154 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1035/2000 OF ADDITIONAL** **SESSIONS COURT (ADHOC)III, TRIVANDRUM** **APPELLANT/S:** **SUNDARAN, S/O.CHELLAPPAN, BLOCK 928, KADIMUKKU, ANAKUDI MURI, PANGODE VILLAGE, NEDUMANGADU TALUK.** **BY ADVS. SRI.M.R.RAJESH SMT.A.K.PREETHA** ## **RESPONDENT/S:** **STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A No.2154/2006** -2- ## **K. BABU, J.** **========================= Crl.A. No.2154/2006 ========================== Dated this the 19[th] day of July, 2021** ## **JUDGMENT** Aggrieved by the judgment dated 29.06.2006, passed by the learned Additional Sessions Judge (Fast Track-III), Trivandrum in S.C.No.1035/2000, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 28.10.1997, the accused was found in possession of 2½ litres of illicit arrack in a 5 litre can at Kanmukku in Pangode Village, Nedumangad Taluk. 4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) the Abkari Act before the Judicial First Class Magistrate **Crl.A No.2154/2006** -3- Court-I, Attingal. The case was committed to the Sessions Court, Attingal from where it was made over to the Additional Sessions Court (Fast Track-III), Trivandrum. 5. 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 oral evidence of PWs 1 to 4 and Exts.P1 to P7 and MO1. 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 found that there is 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) ## **Crl.A No.2154/2006** -4- of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for one year, and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 8. Heard Sri.M.R.Rajesh, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant contended that the prosecution failed to establish that the article said to have been seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could 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. The Excise Inspector, Vamanapuram, Smt.Vijayakumari ## **Crl.A No.2154/2006** -5- detected the offence. The excise team led by her was on patrol duty on 28.10.1997. They found the accused in possession of 2½ litres of illicit arrack in a five litre can at Kanmukku. The Excise Inspector seized the contraband substance from the possession of the accused and arrested him. The Excise Officer who detected the offence was not alive at the time of trial. PW2, the Excise Guard, who accompanied the Excise Inspector, has given evidence that on 28.10.1997 the accused was found in possession of the contraband substance at the place of occurrence. He has further given evidence that contraband substance in possession of the accused was seized by the Excise Inspector as per Ext.P2 seizure mahazar. PW3, another Excise Official who was in the excise team at the time of seizure, also supported the prosecution case. 13. PW1, the independent witness, did not support the prosecution case. PW4, the Excise Inspector, Vamanapuram, conducted investigation. 14. The learned counsel for the appellant contended ## **Crl.A No.2154/2006** -6- that the prosecution was enable to establish the link connecting the accused with the contraband substance. The learned counsel for the appellant relied on the following circumstances to establish his contentions: a) Ext.P2 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used. b) The official witnesses have not given evidence as to the nature and description of the seal affixed on the contraband substance seized from the possession of the accused. - c) The copy of the forwarding note, which contains the specimen impression of the seal, has not been produced before the court. - d) No sample was drawn at the place of occurrence and there is no evidence as to who took the sample. - e) There is no evidence to show that the specimen impression of the seal has been forwarded to the Chemical Examiner. 15. Ext.P2 seizure mahazar is silent regarding the nature and ## **Crl.A No.2154/2006** -7- description of the seal used by the detecting officer at the place of occurrence. The official witnesses have not given evidence as to the nature and description of the seal affixed on the contraband substance allegedly seized from the possession of the accused. In the above circumstances, there is no assurance that the contraband allegedly seized from the place of occurrence was actually produced before the court. 16. Admittedly, no sample was collected from the place of occurrence. This Court is kept in the dark as to who took the sample and on which date and how much quantity and also whether it was despatched in a tamper-proof condition. There is no record before court evidencing any direction issued by the learned Magistrate to the Thondi Section Clerk in charge of the properties to take a specified measure of sample from the bulk quantity received in the court and to despatch the same in a tamper-proof condition to the Chemical Examiner's laboratory. The Thondi Section Clerk of the court was not examined as a witness. It appears that on some day ## **Crl.A No.2154/2006** -8- between 29.10.1997 and 14.11.1997 somebody might have taken sample from some bulk quantity in court and might have despatched the same under the covering letter of the learned Magistrate. 17. This Court is kept in the dark as to who received the bottle containing the sample from the court. The date on which the official concerned who received the bottle containing the sample to deliver the same to the Chemical Examiner's laboratory, is also not evident from the oral evidence of the witnesses and the documents marked in this case. In such a situation, it was imperative for the prosecution to examine the Thondi Clerk or the Excise Official concerned to establish the tamper-proof despatch of the sample to the laboratory. 18. Admittedly, the sample changed several hands before the same reached the Analyst. None of the officials who handled sample have been examined. Non-examination of those witnesses would lead to the conclusion that the prosecution failed to establish the tamper-proof despatch of the sample to the Chemical Examiner's ## **Crl.A No.2154/2006** -9- laboratory. (Vide: **State of Rajasthan v. Daulat Ram [(1980) 3 SCC 303], Ravi v. State of Kerala & another (2011(3) KHC 121), Valsala v. State of Kerala (1993 KHC 798)** . 19. There is no evidence to show that the specimen impression of the seal affixed on the bottle containing the sample was forwarded to the Chemical Examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the bottle containing the sample. When the specimen of the seal affixed on the bottle containing the sample is not forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused eventually reached the hands of the Chemical Examiner without any tampering. (Vide: **Rajamma v. State of Kerala (2014(1) KLT 506)** . ## **Crl.A No.2154/2006** -10- 20. While dealing with a case in which the forwarding note was not produced and marked, this Court in **Ramachandran v.** ## **State of Kerala (2021(1) KLT 793)** held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamperproof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” 21. In view of the fact that there is no evidence to convince the court that the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P7 certificate of chemical analysis. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569)** , the Apex Court held that mere production of the 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. ## **Crl.A No.2154/2006** -11- 22. It is well 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 contraband substance said to have been seized from the possession of the accused (vide: **State of Rajasthan v. Daulat Ram [(1980) 3 SCC 303], Ravi v. State of Kerala & another (2011(3) KHC 121), Valsala v. State of Kerala (1993 KHC 798)** . 23. 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 benefit of doubt arising from the absence of link evidence as discussed above. 24. 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 not guilty of the offence punishable under Section 8(2) of **Crl.A No.2154/2006** -12- the Abkari Act. He is acquitted of the charge levelled against him. The accused is set at liberty. The Criminal Appeal is allowed as above. Sd/- **K. BABU JUDGE** STK