Thankachan S/O George v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 1[ST] DAY OF JULY 2021 / 10TH ASHADHA, 1943** **CRL.A NO. 2220 OF 2006** **AGAINST THE JUDGMENT IN SC 7/2004 OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK COURT I, PATHANAMTHITTA,** **PATHANAMTHITTA** **APPELLANT/ACCUSED:** **THANKACHAN S/O GEORGE, KARUKKALUDEMELETHIL VEEDU, PANDALAM VILLAGE,, ADOOR TALUK, PATHANAMTHITTA DISTRICT.** BY ADV SRI.C.B.SREEKUMAR ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP.BY EXCISE INSPECTOR, ADOOR EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.2220 of 2006 2 **K.BABU, J. ========================= Crl.A No.2220 of 2006** **==========================** Dated this the 1[st] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 19.9.2006, passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court I, Pathanamthitta, in S.C.No.7/2004, the accused has preferred this appeal. 2. The prosecution case is that on 20.12.1999, at 11 am, the accused was found in possession of about 2 litres of arrack in a white can having a capacity of 2½ litres on the public road at Koorampala south in Koorampala Village. 3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Adoor. The case was committed to the Sessions Court, Pathanamthitta from where it was made over to the Additional District and Sessions Judge (Adhoc), Fast Track Court I, Pathanamthitta. On appearance of the accused, charge was framed against him for the offence punishable under Section Crl.A No.2220 of 2006 3 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. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P6 and MOs 1 and 2. 5. 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 Sections 8(2) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs1,00,000/- under Section 8(2) of the Abkari Act. 6. Heard Sri.C.B.Sree Kumar, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant canvassed the Crl.A No.2220 of 2006 4 following grounds to challenge the impugned judgment: a) The prosecution failed to establish the possession of the contraband by the accused at the scene of occurrence as alleged. b) The prosecution miserably failed to establish that the contraband article allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's Laboratory. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. 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 10. PW1, the Preventive Officer attached to the Excise Range Office, Adoor on 20.12.1999 at 11 am detected the offence. He has given evidence that the accused was found in possession of a plastic can containing 2 litres of arrack at Koorampala south on the side of Kayamkulam-Pandalam road. Crl.A No.2220 of 2006 5 The accused was arrested from the spot and the contraband was seized for which Ext.P2 seizure mahazar was prepared, PW1 added. 11. PW2, the Excise Guard who had accompanied the detecting officer supported the version given by him. PW3 and PW4, the independent witnesses, did not support the prosecution case. PW5 conducted the initial investigation. PW6 completed investigation and submitted final report. From the side of the accused DWs 1 and 2 were examined. 12. The learned counsel for the appellant submitted that the prosecution failed to establish that the very same sample allegedly drawn at the scene ultimately reached the hands of public analyst. He relied on the following circumstances to substantiate his contentions: a) The specimen seal has not been produced before the court. The copy of the forwarding note, which contains the specimen impression of the seal affixed on the bottle containing the sample sent to the Chemical Examiner's laboratory, has also not been produced and marked. Crl.A No.2220 of 2006 6 b) PW1, the detecting officer and the other official witnesses have not given evidence as to the nature and description of the seal affixed on the sample. c) Ext.P2, the seizure mahazar, is silent regarding the nature and description of the seal. 13. PW1 has not given evidence as to the nature and description of the seal that he had affixed on the bottles containing the sample. There is no evidence to show that PW1 had produced the specimen of the seal in the court. The copy of the forwarding note has not been placed before the court, so as to ascertain whether the specimen of the seal had been forwarded to the Chemical Examiner. 14. 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 v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191). Crl.A No.2220 of 2006 7 15. In **Rajamma v. State of Kerala (2014(1) KLT 506) : (2016(3) KHC 789)** while dealing with the question of non production of the specimen seal before the court, this Court held thus: “8. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”. (Emphasis supplied). ## 16. In **Gopalan v. State of Kerala (2016 KHC 541)** ## on the failure of the prosecution to make available the copy of the forwarding note, this Court held as follows: “6. In this case, no forwarding note was marked before the Court. No forwarding note is also available before the Court. There is also no evidence before the Court that any forwarding note was prepared and produced before the Court by the Excise Officials. Since no forwarding note is available before the Court, the prosecution could not establish the link evidence connecting the revision petitioner with the contraband Crl.A No.2220 of 2006 8 seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to benefit of doubt.” (Emphasis supplied) 17. In the instant case there is nothing to show that the specimen seal was provided to the Chemical Examiner for comparison. Ext.P6 certificate of chemical analysis says that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any evidence to show that the specimen seal had been provided to the Chemical Examiner's lab, no evidentiary value can be given to Ext.P6, certificate of Chemical analysis. 18. The prosecution failed to give evidence as to the excise official who had received the sample bottle from the court and the official who handed over the sample at the Chemical Examiner's laboratory. There is no evidence to show the date on which the sample was despatched to the laboratory. In such circumstances, it was imperative for the prosecution to examine the Thondi Section Clerk of the court or the Excise official concerned, who handled the sample. None of these witnesses have been examined by Crl.A No.2220 of 2006 9 the prosecution. 19. Absence of evidence regarding the nature and description of the seal used by PW1 at the scene of occurrence, non production of the specimen impression of the seal before the court, lack of evidence regarding forwarding of specimen seal to the Chemical Examiner for comparison and non-examination of the officials who handled the sample lead this Court to conclude that the prosecution failed to establish the link evidence connecting the appellant and the contraband allegedly seized and the sample analysed in the laboratory. 20. 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 contraband substance said to have been possessed by the accused (vide: Valsala v. State of Kerala (1993 KHC 798), State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]. 21. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the Crl.A No.2220 of 2006 10 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. 22 **.** In the absence of the link evidence discussed above, the accused is entitled to benefit of doubt. The conviction entered by the court below overlooking these aspects, cannot therefore be sustained. In the result, the appellant/accused is found not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge under Section 8(2) of the Abkari Act. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K. BABU JUDGE** **ab**