Sunny Chalatharayil Veedu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 12[TH] DAY OF JULY 2021 / 21ST ASHADHA, 1943 CRL.A NO. 2421 OF 2006** **AGAINST THE JUDGMENT IN SC 339/2002 OF ADDITIONAL** **SESSIONS COURT FAST TRACK(ADHOC), MAVELIKKARA, ALAPPUZHA APPELLANT/ACCUSED:** **SUNNY CHALATHARAYIL VEEDU, KANICHANELLOOR MURI, CHEPPAD VILLAGE.** BY ADVS. SRI.R.GOPAN SRI.BASANT BALAJI ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** SRI. M.S. BREEZ (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2421 of 2006 2 ## **K.BABU, J. ========================= Crl.A No.2421 of 2006** **==========================** Dated this the 12[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 27.11.2006, passed by the Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C.No.339/2002, the accused has preferred this appeal. 2. The trial court convicted the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. 3. The prosecution case is that on 22.8.1999 at 5.45 pm., the accused was found transporting 5 litres of illicit arrack in a can through the Panchayat Road leading to PannakulangaraPanachimoodu road. 4. After completion of investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Kayamkulam. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Additional Sessions Court, Fast Track (Adhoc), Mavelikkara. On Crl.A No.2421 of 2006 3 appearance of the accused charges were framed against him for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6, Exts.P1 to P8 and MO1. 6. 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. A witness was examined as DW1 from the side of the accused. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences under Sections 8(2) and 55(a) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. 7. Heard Sri.R.Gopan, the learned counsel appearing for Crl.A No.2421 of 2006 4 the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant contended that the prosecution failed to establish that the articles allegedly seized from the possession of the accused eventually reached the hands of Analyst at the Chemical Examiner's laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. He contended that sufficient materials are there to establish the prosecution case. 10. 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 11. PW4, the Preventive Officer, Karthikappally Excise Range, detected the offence. He has given evidence that on 22.8.1999 at 5.45 pm., the excise team led by him was on patrol duty and he found the accused transporting 5 litres of illicit arrack in a black can. PW4 gave evidence that the contraband substance was seized from the possession of the accused by way of Ext.P1 Crl.A No.2421 of 2006 5 seizure mahazar.. The accused was arrested from the spot. 12. PW3, the Excise Preventive Officer, Excise Range Office, Karthikappally, who had accompanied PW4, has given evidence in support of the prosecution case. 13. PWs 1 and 2, the independent witnesses, did not support the prosecution. 14. PW5, the Excise Inspector, Excise Range Office, Karthikappally received the contraband substance and registered Crime No.49/1999, alleging the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. PW5 produced the articles seized from the possession of the accused as per Ext.P5 list before the court. PW6, the Excise Inspector, Karthikappally conducted investigation and submitted final report before the Magistrate's Court on 4.1.2002. 15. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions: i) The detecting officer, PW4 and the other official witness have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. ii) Ext.P1 seizure mahazar, the Crl.A No.2421 of 2006 6 contemporaneous document evidencing the seizure, does not contain any narration as to the nature and description of the seal used. iii) Ext.P7, the copy of the forwarding note, is silent with regard to the name of the person with whom the sample was sent for analysis. 16. I have gone through the depositions of the witnesses and Ext.P1 seizure mahazar. PW4, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P1, the seizure mahazar does not contain the specimen of the seal stated to have been affixed on the sample. 17. 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 K. v. State** **of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)** . 18. Ext.P7 is the copy of the forwarding note whereby the sample was forwarded to the Chemical Examiner. Ext.P7 is silent Crl.A No.2421 of 2006 7 with regard to the name of the person with whom the sample was sent for analysis. Ext.P8 certificate of chemical analysis shows that the sample was received in the laboratory through the Excise Guard Sri.K.Soman Pillai on 18 **.** 9.1999. It is not discernible as to why the space meant for writing the name of the Excise Guard with whom the sample was forwarded remained unfilled in Ext.P7 forwarding note. The learned Magistrate has not written the date on which he put initials on Ext.P7 forwarding note. While considering a similar fact situation this Court in **Kumaran v.** ## **State of Kerala (2016(4) KLT 718)** 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 of 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 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 Crl.A No.2421 of 2006 8 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 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.” 19. In the instant case, the Thondi Clerk of the court and the Excise Guard concerned were not examined. It was imperative for the prosecution to examine the Thondi Clerk of the court or the Excise Guard with whom the sample bottle was sent to the laboratory to prove the tamper proof despatch of the sample to the laboratory. 20. 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. 21. It is settled that the prosecution in a case of this nature Crl.A No.2421 of 2006 9 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. 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. **(vide: State of** ## **Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** 22. 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. The appellant/accused is therefore not guilty of the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. He is acquitted of the charges. He is set at liberty. Sd/- **K. BABU** **JUDGE** **ab**