Thankamani Vinnamchath Veettil v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 15[TH] DAY OF JULY 2021 / 24TH ASHADHA, 1943** **CRL.A NO. 1820 OF 2006** **AGAINST THE JUDGMENT DATED 25.08.2006 IN SC.NO.319/2004 OF ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.III (ADHOC),** ## **MANJERI, MALAPPURAM** **APPELLANT/ACCUSED:** **THANKAMANI** **VINNAMCHATH VEETTIL, CHIRATTAKKUNNU, KUTTIPPURAM AMSOM, KUTTIPPURAM DESOM, TIRUR TALUK.** **BY ADV P.M.RAFIQ** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP . 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 15.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1820 of 2006 2 ## **K. BABU J.** ## **------------------------------------** ## **Crl.A.No.1820 of 2006** **------------------------------------** Dated this the 15[th] day of July, 2021 ## **J U D G M E N T** Aggrieved by the judgment dated 25.08.2006, passed by the learned Additional Sessions Judge, Fast Track Court No.III (Adhoc), Manjeri in SC.No.319/2004, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 55(g) of the Kerala Abkari Act. 3. The prosecution case is that on 21.09.2002 at about 06.00 a.m., the accused was found in possession of 10 liters of Wash in a plastic pot having a capacity of 18 liters at Chirattakkunnu, Kuttippuram, Malappuram District. 4. The final report was submitted against the accused for the offence punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Crl.A.No.1820 of 2006 3 Court, Tirur. 5. The case was committed to the Sessions Court, Manjeri, from where it was made over to the Additional Sessions Court, Fast Track Court No.III (Adhoc), Manjeri. On appearance of the accused charge was framed against her for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty and therefore, she came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 6 and Exts.P1 to P7 and Mos. 1 to 2. 7. After 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 that there was evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. The learned trial court, after hearing arguments Crl.A.No.1820 of 2006 4 addressed from both sides, found that the accused is guilty of offence under Section 55(g) of the Abkari Act and she was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/- under Section 55(g) of the Abkari Act. 8. Heard Sri. P.M.Rafiq, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused raised the following grounds: - (a) The prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the scene of occurrence. - (b) The prosecution failed to establish that the articles said to have been seized from the place of occurrence ultimately reached the Chemical Examiner's laboratory. - (c) There is no satisfactory explanation for the Crl.A.No.1820 of 2006 **==> picture [7 x 9] intentionally omitted <==** delay caused in the analysis of the sample at the Chemical Examiner's laboratory. (d) The prosecution has not offered any satisfactory explanation for the delay in completion of the investigation. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. 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** 12. PW1, an Excise Preventive Officer attached to Excise Special Squad, Malappuram detected the offence. He has given evidence that on 21.09.2002 at about 6 a.m., the accused was found carrying a plastic pot at Chirattakkunnu, Kuttippuram, Malappuram District, near the residence of Chenganayil Sarada. PW1 has further given evidence that on inspection he found that the plastic pot carried by the accused contained 10 liters of Crl.A.No.1820 of 2006 6 Wash. PW1 seized the Wash found in possession of the accused, as per Ext.P1, seizure mahazar. PW1 has given evidence that the accused being a lady could not be arrested as no woman official was available with them. According to PW1, he collected 500 ml each, from the Wash seized, in 2 bottles as samples and sealed the same. PW1 entrusted the articles allegedly seized from the place of occurrence to the Excise Guard on duty at Excise Range Office, Tirur. PW2, an Excise Preventive Officer, who had accompanied PW1, supported the version of PW1. 13. PW4, an independent witness, did not support the prosecution case. PW3, Excise Inspector, Excise Range Office, Tirur, produced the articles seized before the court on 23.09.2002. PW5, an Excise Guard on duty on the relevant day also supported the prosecution case. PW6, the Excise Range Inspector, Tirur, conducted investigation and submitted final report before the Court. 14. Learned counsel for the appellant/accused contended that the prosecution miserably failed to Crl.A.No.1820 of 2006 7 establish the identity of the person who was carrying the contraband substance at the scene of occurrence. Admittedly the accused was not arrested from the spot. PW1 identified the accused in the court. PW1 has no case that he had any previous acquaintance with the accused. PW2, the Excise Preventive Officer, who had accompanied PW1, has given evidence that he had previous acquaintance with the accused as he had gone to her residence in connection with some other cases. PW2 added that a case had been earlier registered against the accused. PW2 has failed to give the specific details of the case allegedly registered against the accused earlier. 15. It is pertinent to note that Ext.P1 seizure mahazar is silent regarding the previous acquaintance of PW2 with the accused. Ext.P1 seizure mahazar, prepared by PW1 at the scene of occurrence in the presence of PW2, would state that the Excise party found “a lady” carrying a plastic pot containing illicit arrack and on further verification they ascertained her whereabouts. If PW2 had any previous acquaintance with the accused as stated by Crl.A.No.1820 of 2006 8 him in court in his evidence, the same would have found a place in Ext.P1 seizure mahazar. Hence the evidence of PW2 that he had previous acquaintance with the accused is not credible. This Court is unable to accept the version so given by PW2. 16. Hence this Court comes to the conclusion that PWs 1 and 2 had no previous acquaintance with the accused. PWs1 and 2 identified the accused in the court in July, 2006, approximately after a long lapse of 4 years. PWs 1 and 2 have not given any satisfactory evidence as to any of the circumstances which would enable them to identify the accused after such a long lapse of time. 17. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during the trial. Where a witness identifies an accused, who is not known to him in the court, for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation Crl.A.No.1820 of 2006 9 (vide: **Jameel v. State of Maharashtra** [AIR (2007) SC 971], **Raja v. State by Inspector of Police** [AIR (2020) SC 254], **Kannan and Others v. State of Kerala** [AIR (1979) SC 1127], **State (Delhi Administration) v. V.C.Shukla and Another** [AIR (1980) SC 1382], **Mohanlal Gangaram Gehani v. State of Maharashtra** [AIR (1982) SC 839], **Mohd. Abdul Hafeez v. State of AP** [AIR (1983) SC 367]. 18. The resultant conclusion is that prosecution failed to establish the identity of the person who was in possession of the contraband substance at the place of occurrence. 19. The learned counsel for the appellant/accused further contended that the prosecution failed to establish that the sample allegedly drawn at the place of occurrence, eventually reached the Chemical Examiner's laboratory. 20. The learned counsel relied on the following circumstances to substantiate his contentions: (a) The detecting officer has not produced the specimen impression of the seal before the Crl.A.No.1820 of 2006 10 court. - (b) Ext.P5, copy of the forwarding note, is silent regarding the specimen impression of the seal. - (c) What was subjected to analysis in the Chemical Examiner's laboratory was a bottle containing 500 ml of liquid stated to have been sent from the Judicial First Class Magistrate Court on 21.09.2002, a date anterior to the date on which the articles were produced before the court. - (d) The prosecution has not offered any satisfactory explanation for the delay in the analysis of the sample reached at the Chemical Examiner's laboratory. 21. No convincing evidence has been produced before the court to establish that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner to verification. Ext.P5, copy of the forwarding note, does not contain the specimen impression of the seal stated to have been affixed on the bottle containing the sample at the scene of occurrence Crl.A.No.1820 of 2006 ## 11 by the detecting officer. What is affixed in Ext.P5 copy of the forwarding note is the seal of the Magistrate's court concerned. ## 22. In **Rajamma v. State of Kerala** [2014 (1) KLT ## 506], this Court held thus: “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”. 23. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6 chemical analysis report. 24. Ext.P6, certificate of chemical analysis, would Crl.A.No.1820 of 2006 12 show that the laboratory received one sealed bottle containing 500 ml of a dark brownish turbid liquid as per letter dated 21.09.2002 of the Judicial First Class Magistrate Court, Tirur. In Ext.P5, copy of the forwarding note, the learned Magistrate has not written the date on which he affixed his initial. The date of despatch of the sample to the laboratory is not mentioned in Ext.P5. The official witnesses have not given evidence as to the date on which the sample bottle was despatched to the Chemical Examiner's laboratory. Ext.P4 property list shows that the properties were received at the Judicial First Class Magistrate Court-I on 23.09.2002. What was subjected to analysis in the laboratory is a bottle forwarded as per letter dated 21.09.2002 by the learned Judicial First Class Magistrate Court, Tirur. This would lead to the conclusion that what was subjected for examination at the Chemical Examiner's laboratory was a sample containing the contraband substance collected anterior to the date on which the articles were produced by PW3 as per Ext.P4. This creates serious suspicion as Crl.A.No.1820 of 2006 **==> picture [13 x 9] intentionally omitted <==** to whether the contraband stated to have been drawn at the place of occurrence eventually reached the Chemical Examiner's laboratory. 25. In the given fact situation the prosecution ought to have examined the Thondi Clerk of the court or the Excise official, who received the sample bottle from the court, and the official who delivered the same to the Chemical Examiner's laboratory. This is more important when Ext.P6 shows that the bottle containing the sample reached the Chemical Examiner's laboratory only on 18.10.2002. Ext.P6 further shows that the sample received at the laboratory was subjected to analysis only on 30.12.2003. 26. The learned counsel for the appellant contended that the delay in analysis of the sample, which has not been explained satisfactorily, is also fatal to the prosecution. While dealing with the question of delay in 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. Crl.A.No.1820 of 2006 14 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 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.” 27. In the instant case, the delay of more than one year in the analysis of the sample remains unexplained. 28. 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. 29. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the Crl.A.No.1820 of 2006 15 accused. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 30. 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 the benefit of doubt arising from the absence of link evidence as discussed above. 31. 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 55(g) of the Abkari Act. She is acquitted of the charge levelled against her. She is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS