Sunil Kumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 18TH DAY OF JUNE 2020 / 28TH JYAISHTA, 1942** ## **CRL.A.No.796 OF 2011** **AGAINST THE JUDGMENT IN SC 944/2005 DATED 19-04-2011 OF ADDITIONAL DISTRICT & SESSIONS COURT (ADHOC)-IV, THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **SUNIL KUMAR, S/O THAPASI ROADARIKATHU VEEDU, POOVANILA, VADAKKODE DESOM, PERUMPAZHUTHOOR VILLAGE,NEYYATTINKARA, TALUK.** **BY ADV. SRI.G.SUDHEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16-06-2020, THE COURT ON 18-06-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.796 OF 2011** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 796 of 2011** ----------------------------------------------------Dated this the 18[th] day of June, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No.944/2005 on the file of the Court of the Additional Sessions Judge, Thiruvananthapuram. 2. The prosecution case is that, on 13.11.2003, at about 08:30 hours, at the side of a canal near the Bhagavathy Temple at the place Vadacode, PW2 Excise Inspector found the appellant/accused having in his possession a can containing two litres of arrack, which was intended for sale. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The accused/appellant pleaded not guilty to the offence and claimed to be tried. 4. The prosecution examined PW1 to PW4 and marked Exts.P1 **CRL.A.No.796 OF 2011** **3** to P8 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 5. The trial court found the accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of six months and also to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard learned counsel for the appellant and also the learned Public Prosecutor. Perused the records. 8. PW2 is the Excise Inspector who detected the offence. He has given evidence with regard to the occurrence in detail. PW3 is the Assistant Excise Inspector who was in the excise party led by PW2. His evidence corroborates the testimony of PW2 regarding the occurrence. 9. PW4 is the independent witness examined by the prosecution to prove the occurrence. He did not support the prosecution case. He denied having seen the incident. 10. Ext.P3 is the chemical examination report received in respect of the sample which was sent for analysis. It shows that the **CRL.A.No.796 OF 2011** **4** sample of liquid contained 33.46% by volume of ethyl alcohol. 11. Learned counsel for the appellant contended that the prosecution has not proved that the appellant had possessed or transported arrack. Learned counsel also contended that the evidence adduced by the prosecution is not sufficient to find that Ext.P3 chemical analysis report relates to any sample taken from the liquid allegedly seized from the possession of the accused. 12. The evidence of PW2 and PW3 is to the effect that the can containing the arrack was found near the accused who was standing at the side of a canal and the can was seized. There is no evidence to find that the accused was holding the can containing the arrack or that he had in any manner dealt with it. The can was found at a public place and the accused was found standing near it. The can was found not in the property of the accused or in any other private property or private place. Mere presence of a person at a public place near any contraband substance, without anything more, is not sufficient to infer that he was in possession of such substance. In such circumstances, it cannot be found that the accused had possessed or transported the can containing the arrack. 13. Even assuming that the accused was in possession of the can which was seized by the excise officers, the evidence adduced by **CRL.A.No.796 OF 2011** **5** the prosecution is not sufficient to find that Ext.P3 chemical analysis certificate relates to the sample of liquid drawn from that can. The reasons are as follows. 14. The recital in Ext.P4 seizure mahazar is that, PW2 seized the can and sealed it and affixed label on it, bearing his signature and also the signature of the witnesses and the accused. There is no recital in Ext.P4 seizure mahazar that sample was taken at the spot of the occurrence from the liquid in the can. PW2 and PW3 have also not given any evidence that sample of the liquid from the can was taken at the spot of the occurrence. 15. As already stated, Ext.P4 seizure mahazar contains a recital that the can which contained the liquid was sealed and label was affixed on it at the spot of the occurrence and that the label had the signature of PW2 and the witnesses and the accused. The evidence of PW2 shows that, on returning to the Excise Range Office, he prepared Ext.P5 crime and occurrence report. The description of the can given in Ext.P5 report does not show that it was sealed or labelled or that there was any seal or label on it. 16. PW2 has given evidence that he produced the material objects before the court as per Ext.P2 property list. The description of the can given in Ext.P2 property list also does not show that there was **CRL.A.No.796 OF 2011** **6** any seal or label on the can which was produced before the court. 17. PW1 is the property clerk of the Magistrate's Court concerned. She deposed that the can produced in the court was received on 13.11.2003 and as per the order of the Magistrate, sample was taken from the can and the sample was sent for analysis. PW1 also identified MO1 can in the court. 18. Ext.P1 is the extract of the property register kept in the Magistrate's Court. The description of the properties received is recorded in it. It does not show that the can which was produced before the court had any seal or label on it. 19. In the aforesaid circumstances, there is no assurance that the very same can which was seized by PW2 as per Ext.P4 mahazar was produced by him before the court as per Ext.P2 property list. It follows that, there is also no assurance that sample of liquid was taken by PW1 from the very same can which was seized by PW2 as per Ext.P4 mahazar. It further follows that, there is also no assurance that the very same sample drawn from the liquid contained in the can seized by PW2 as per Ext.P4 mahazar was tested in the laboratory and that Ext.P3 chemical examination report relates to such sample. 20. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: **CRL.A.No.796 OF 2011** **7** "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that tested have to be co-related". 21. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 22. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In **CRL.A.No.796 OF 2011** **8** such circumstances, the appellant/accused is entitled to be acquitted. 23. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. **Sd/-R. NARAYANA PISHARADI JUDGE** ## **lsn**