Surendran s/o Ponnan v. State of Kerala

1 # **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 CRL.A NO. 1978 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 337/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD** **APPELLANT/ACCUSED:** SURENDRAN S/O.PONNAN, PARAMPALLATH VEETTIL, LAKKIDI PERUR VILLAGE, PERUR DESOM, OTTAPALAM TALUK. BY ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVINDRANATH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 2 Crl.A No.1978 of 2008 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.1978 of 2008 --------------------------------------Dated this the 19[th] day of May, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12.08.2008, passed by the Additional Sessions Judge, Fast Track Court-II Palakkad in S.C No.337/2006, the accused has preferred this appeal. 2. By the impugned judgment, the appellant/accused was convicted for the offence punishable under Section 8(2) of the Abkari Act. 3. The prosecution case is that on 29.08.2003 at about 05.50 p.m, the accused was found in possession of about 10 litres of arrack in a black can on the public road near the railway culvert at Perur Desom in Lakkidi Perur Village. 4. PW1, the Preventive Officer Of Ottapalam Excise Range detected the offence. On the date of occurrence, he was on patrol duty. When the excise party led by PW1 3 Crl.A No.1978 of 2008 reached Sadanam road the accused was found carrying a plastic can. On inspection, it was found that the can contained 10 litres of illicit arrack. The accused was arrested. PW1 collected 300 ml of arrack from the bottle and sealed the same to be used as sample. The accused and the contraband substance along with the records prepared in the place of occurrence were produced before the Excise Range Officer, Ottappalam. 5. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ottapalam. The case was committed to the Sessions Court, Palakkad from where it was made over to the trial Court. On the 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 to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4 Crl.A No.1978 of 2008 6. The evidence of the prosecution consists of the oral evidence of PWs 1 to 4, Exts.P1 to P8 and MOs 1 to 3. 7. After the 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 evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. DWs 1 and 2 were examined on the side of the defence. The trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 8. Heard Sri.P.K. Mohanan(Palakkad), the learned counsel appearing for the appellant/accused and Smt. 5 Crl.A No.1978 of 2008 Rekha.S the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing that the contraband substances allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's Laboratory. 10. The learned Public Prosecutor contended that the prosecution could well establish the charge against the accused. 11. On 29.08.2003 PW1, the Preventive Officer, Ottapalam Excise Range, who was on patrol duty, found the accused at the place of occurrence carrying a plastic can containing 10 litres of illicit arrack. He was arrested from the spot by PW1. He prepared Ext.P3 Seizure Mahazar. PW1 collected 300 ml of arrack from the bottle in possession of the accused and sealed the same. PW2, the Excise Guard, Ottapalam Excise Range, who had accompanied PW1 in the patrol duty, supported the version 6 Crl.A No.1978 of 2008 of PW1. PW3, the independent witness examined to prove the incident proper, did not support the prosecution version. PW4, conducted investigation and submitted final report in the matter. 12. The learned counsel for the accused contended that the prosecution failed to establish the link evidence required for ensuring that the contraband substance stated to have been seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. The learned counsel further contended that the unexplained delay in the examination of the sample also affects the genuineness of the result of the examination. It is contended on the side of the defence that the non-examination of the officials, who handled the sample in its transit from the place of seizure to the laboratory through the Court, is fatal to the prosecution. The sample stated to have been seized from the place of occurrence on 29.08.2003 was produced before the Court on 30.08.2003. Ext.P4, the certificate of 7 Crl.A No.1978 of 2008 chemical analysis shows that the sample reached the laboratory on 04.09.2003. Ext.P7 is the copy of the forwarding note. The Ext.P7 is silent as to the date on which the sample was forwarded to the laboratory. The copy of the forwarding note, is also silent with regard to the name of the person with whom the sample was sent for analysis. The learned Magistrate who put the initials in the forwarding note has not indicated the date on which the initials was made. While dealing with a similar fact situation, in **Kumaran v. State of Kerala** [2016 (4) KLT 718], this Court 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 8 Crl.A No.1978 of 2008 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 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 9 Crl.A No.1978 of 2008 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 tamper-proof 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. In the instant case, the prosecution has not examined either the thondi clerk of the Court or the excise officials concerned to prove the tamper-proof despatch of the sample to the laboratory. 14. This Court is in dark as to the date on which the sample was handed over to the Excise Official concerned, who received the same from the Court for delivering to the Chemical Examiner's Laboratory.The 10 Crl.A No.1978 of 2008 materials placed before the Court show that the sample remained in the custody of the Excise Inspector who forwarded the sample to the Court, the property clerk of the Court, the excise official who received the sample from the Court to be delivered to the laboratory and another excise guard who handed over the sample to the analyst. None of these officials were examined as witnesses by the prosecution to prove that while in their custody the seals were not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period, a fact which had to be proved affirmatively by the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [1980 (3) SCC 303]. 15. In the absence of any convincing evidence to prove that the contraband substance stated to have been seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P4 certificate of 11 Crl.A No.1978 of 2008 ## analysis does not have any evidentiary value. 16. The learned counsel for the appellant further contended that the inordinate delay in the process of analysis of the sample is also fatal to the prosecution. The sample reached the laboratory on 04.09.2003. But, the sample was subjected to analysis only on 04.10.2004, after a lapse of more than a year. While dealing with question of delay in the analysis of the sample, this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the 12 Crl.A No.1978 of 2008 laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 17. The delay of more than one year in the analysis of the sample remains unexplained, the benefit of which must go to the accused. 18. 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 corelated. 19. 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** 13 Crl.A No.1978 of 2008 **v. Daulat Ram** [AIR (1980) SC 1314 **], Sasidharan v. State of Kerala** [2007 (1) KHC 275]). 20. 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. Resultantly, the accused is entitled to the benefit of doubt. 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 the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk