Thankam v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, 1944 ``` ## **`CRL.A NO. 1424 OF 2007`** ``` AGAINST THE ORDER/JUDGMENTSC 1284/2001 OF ADDITIONAL S.C.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 49/2000 OF JUDICIAL MAGISTRATE OF FIRST ``` ## **`CLASS ,KATTAKADA`** ## **`APPELLANT:`** ``` THANKAM ``` ``` POONGODE, KOLLUVILLA PUTHEN VEEDU,, MEPPUKKADA, MALAYINKEEZHU DESOM, MALAYINKEEZHU, VILLAGE, NEYYATTINKARA TALUK,, THIRUVANANTHAPURAM DISTRICT. ``` ``` BY ADVS. SRI.RAM MOHAN.G. SRI.MANU V. SRI.G.P.SHINOD ``` ## **`RESPONDENT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR AT HIGH COURT OF KERALA, ``` ``` BY SR. PUBLIC PROSECUTOR SMT. REKHA S. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1424 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 23.07.2007, passed by the Additional Sessions Court, Neyyattinkara in Sessions Case No.1284 of 2001, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 17.08.1998 at 3.30 p.m., the accused was found in possession of 1½ litres of illicit arrack at Malayinkeezhu in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** framed against her for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 4 and proved Exts. P1 to P10 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted her thereunder. 6. Heard Sri. Ram Mohan G., the learned counsel appearing for the appellant/accused and Smt. Rekha S., ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- - (i) The drawing of the sample by the Property Clerk of the Court as per the instruction of the learned Magistrate has no sanction of law. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant submitted that the procedure adopted by the jurisdictional Magistrate in drawing the sample from the bulk quantity of the arrack produced before the Court is not a procedure established by law. 9. The alleged seizure was effected on 17.08.1998. ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** Admittedly, the sample was not drawn from the scene of occurrence by the Preventive Officer of Kattakkada Excise Range. He produced the bulk quantity of the arrack seized from the accused before the Court. The Property Clerk of the Court [PW4], deposed that he had drawn the sample as per the instructions of the learned Magistrate and forwarded the same to the laboratory. The legality of the procedure for drawing of the sample by the Property Clerk of the Court was considered by this Court in **Baburaj v. State of Kerala** [2021(6) KLT 416]. In **Baburaj v. State of Kerala** (Supra) this Court held thus:- “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting oficer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating oficer before the learned Magistrate, ``` CRL.A NO. 1424 OF 2007 ``` ..6.. which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala** [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala** [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting oficer.” 10. In **Baburaj v. State of Kerala** (Supra), this Court further held that the procedure adopted in drawing the sample by the Property Clerk of the Court from the contraband substance has no sanction of law and therefore, Ext.P9, Certificate of Chemical Analysis obtained based on the sample so drawn has no evidentiary value. On this ground alone, the prosecution must fail. ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 11. The prosecution also failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Court. The Detecting Officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was also not produced before the Court. 12. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 13. Therefore, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence reached the Court in a tamper-proof condition. Ext.P4 is the forwarding note/requisition for sending sample to the laboratory. In Ext. P4, the space meant for specimen seal is left vacant. There is nothing ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** on record to show that the specimen seal used for sealing the sample was forwarded to the Chemical Examiner’s Laboratory to facilitate the analyst to ascertain the genuineness of the sample produced for analysis. 14. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report. 15. The sample was forwarded to the laboratory on 29.08.1998 through an Excise Guard by name Kumaran Nair. The sample reached the laboratory only on 31.08.1998 **.** The Excise official who obtained the sample from the Court and delivered the same to the laboratory was not examined. The prosecution has not offered any satisfactory explanation for the delay in the production of ``` CRL.A NO. 1424 OF 2007 ``` ..9.. the sample to the laboratory, after obtaining the same from the Court. Non-examination of the Excise Guard with whom the sample remained for the period from 29.08.1998 to 31.08.1998 is fatal to the prosecution. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 16. 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, found not guilty of the offence punishable under Section 58 of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; (iv) He is set at liberty ; ``` CRL.A NO. 1424 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj