Suresh s/o Krishnankutty and Asokan s/o Purushan Puthen Kandathil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **THURSDAY, THE 09TH DAY OF JULY 2020 / 18TH ASHADHA, 1942** ## **CRL.A.No.1903 OF 2006** **AGAINST THE JUDGMENT IN SC 31/2004 DATED 06-07-2006 OF ADDITIONAL SESSIONS COURT (FAST TRACK COURT)-II, ALAPPUZHA** ## **APPELLANTS/ACCUSED:** **1 SURESH S/O KRISHNANKUTTY, KALAPPURACKAL VEEDU, WARD NO.8,, CHINGOLI PANCHAYAT, CHINGOLI VILLAGE, ALLEPPEY DIST. 2 ASOKAN, S/O.PURUSHAN PUTHEN KANDATHIL, WARD NO.3, KARTHIKAPPALLY VILLAGE, DO. PANCHAYAT,, ALLEPPEY DIST.** **BY ADVS. SRI.R.GOPAN SRI.BASANT BALAJI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA** **REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KEARLA,, ERNAKULAM.** **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-07-2020, THE COURT ON 09-07-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.1903 OF 2006** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- ## **Crl.A. No. 1903 of 2006** ----------------------------------------------------Dated this the 9[th] day of July, 2020 ## **JUDGMENT** The appellants are the two accused in the case S.C No.31/2004 on the file of the Court of the Additional Sessions Judge, Alappuzha. 2. The prosecution case is that, on 21.06.2002, at about 12:15 hours, at the road near the house “Shaji Bhavan” at the place Mahadevikkad, PW6 Sub Inspector found the appellants/accused in possession of a can containing 1.500 litres of spirit. 3. The trial court framed charge against the accused for the offence punishable under Section 55(a) of the Abkari Act. Both accused pleaded not guilty to the offence and they claimed to be tried. 5. The prosecution examined PW1 to PW7 and marked Exts.P1 to P6 documents and MO1 and MO2 material objects. No evidence was adduced by the accused. 6. The trial court found both accused guilty of the offence punishable under Section 55(a) of the Abkari Act and convicted them **CRL.A.No.1903 OF 2006** **3** thereunder and sentenced them to undergo simple imprisonment for a period of one year each and also to pay a fine of Rs.1,00,000/-each and in default of payment of fine, to undergo simple imprisonment for a period of three months each. 7. Aggrieved by the order of conviction and sentence passed against them by the trial court, the accused have filed this appeal. 8. Heard. Perused the records. 9. PW6 is the Sub Inspector who detected the offence. He has given evidence regarding the occurrence in detail. PW4 is the police constable who was in the police party led by PW6. His evidence corroborates the testimony of PW6 with regard to the material particulars of the occurrence. PW3 is the Head Constable who was in the police party led by PW6. He has also given evidence regarding the occurrence. However, he was declared hostile to the prosecution on the ground that he deposed before the court that he could not remember whether sample was taken at the spot of the occurrence. 10. PW1 is one of the independent witnesses examined by the prosecution. He did not support the prosecution case. He denied having seen the incident. But he admitted his signature in Ext.P1 seizure mahazar. **CRL.A.No.1903 OF 2006** **4** 11. PW2 is another independent witness examined by the prosecution. He gave evidence in examination-in-chief that he saw the police party seizing arrack from the possession of the accused. He also admitted his signature in Ext.P1 mahazar. He has stated on crossexamination that he had only heard that arrack was seized by the police party. 12. PW5 is the Assistant Chemical Examiner who had conducted chemical analysis of the sample of liquid which was forwarded from the court and issued Ext.P2 certificate. Ext.P2 certificate of chemical analysis shows that the sample of liquid contained 36.16% by volume of ethyl alcohol. 13. PW6 Sub Inspector, who detected the offence, had also conducted the investigation of the case. PW7 Sub Inspector filed final report against the accused after completing the investigation of the case. 14. After perusing the evidence adduced by the prosecution and the judgment of the trial court, I find it difficult to sustain the conviction entered against the accused by the trial court. The reasons are as follows. 15. The evidence of PW6 Sub Inspector is that he saw one person holding a can and the other person holding a glass and on **CRL.A.No.1903 OF 2006** **5** inspection of the can it was found that it contained spirit and that he seized the articles after taking sample of liquid from the can. However, PW6 Sub Inspector did not identify the two accused in the court separately. He did not specifically identify any of the two accused in the court as the person who was holding the can or the person who was holding the glass. PW3 and PW4 also did not specifically identify the two accused in the court in the aforesaid manner. 16. PW6 has given evidence that he took sample of the liquid from the can and sealed the can and the bottle containing the sample and that he affixed label, bearing his signature and signature of the witnesses, on the can and the sample bottle. There is also a recital in Ext.P1 seizure mahazar that PW6 affixed label, bearing the signature of himself and the witnesses and the accused, on the can and the sample bottle. 17. Ext.P6 is the property list prepared by PW6 for producing the material objects before the court. The description of the can and the sample bottle given in Ext.P6 property list does not show that there was any label on those articles. Therefore, there is no assurance that the very same can and the very same sample allegedly seized by PW6 from the possession of the accused were produced before the court as per Ext.P6 property list. **CRL.A.No.1903 OF 2006** **6** 18. Ext.P2 chemical analysis report shows that the sample of liquid forwarded from the court contained 36.16% by volume of ethyl alcohol. It is also stated in Ext.P2 certificate that the seal on the sample bottle was intact and that it tallied with the sample seal provided. But, there is no evidence to find that the sample allegedly drawn by PW6 at the spot of the occurrence was forwarded for analysis from the court. There is no evidence to find that PW6, who had detected the offence and also conducted the investigation of the case, had made any request to the court for sending the sample for analysis. 19. The copy of the forwarding note, which should have been prepared and submitted by PW6, for sending the sample for analysis is not marked in evidence. Therefore, there is no evidence to find that specimen of the seal affixed on the sample bottle was available to the chemical examiner for comparison. In this context, it is pertinent to note that PW6 has not given any evidence as to the nature of the seal used by him for sealing the sample bottle. The specimen of seal used by him is also not seen affixed on Ext.P1 mahazar. The recital in the chemical analysis report that the seal on the sample bottle was intact and it tallied with sample seal provided alone is not sufficient to come to the conclusion that the very same sample drawn by the detecting **CRL.A.No.1903 OF 2006** **7** officer at the spot of the occurrence had reached the laboratory for analysis. It is usual that seal of the Court would be affixed while sending the sample for analysis to the chemical examiner. Therefore, the sample seal mentioned in the chemical analysis certificate can also be the seal of the court. A comparison of the seal of the Court affixed on the bottle containing the sample with the specimen seal of the Court will not give any assurance that the sample of the liquid seized from the possession of the accused had reached the chemical examiner for analysis. Such an assurance would be possible only when the specimen of the seal affixed on the sample bottle is provided to the chemical examiner for comparison. Such link evidence is missing in this case. 20. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). **CRL.A.No.1903 OF 2006** **8** ## 21. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019** ## **SC 3569** , the Supreme Court has held as follows: "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". 22. 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. **CRL.A.No.1903 OF 2006** **9** 23. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the order of conviction and sentence passed against the appellants/accused by the trial court cannot be sustained. 24. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellants/accused by the trial court under Section 55(a) of the Abkari Act is set aside. The appellants/accused are found not guilty of the aforesaid offence and they are acquitted. The bail bond executed by them is cancelled and they are set at liberty. **Sd/-R. NARAYANA PISHARADI JUDGE** lsn