Thayyil Veettil Koyitti Anoop v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 27[TH] DAY OF JULY 2021 / 5TH SRAVANA, 1943** **CRL.A NO. 2968 OF 2008** **AGAINST THE JUDGMENT IN SC 469/2007 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, THALASSERY, KANNUR** **APPELLANT/ACCUSED:** **THAYYIL VEETTIL KOYITTI ANOOP AGED 26 YEARS, S/O. GOVINDAN, MARUVANCHERRY CHALIL, SIVAPURAM AMSOM, KANHILERI DESOM, THALASSERY.** BY ADVS. SRI.V.V.ASOKAN SRI.P.P.RAMACHANDRAN ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA (EXCISE INSPECTOR, MATTANNUR EXCISE RANGE), REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** CRL.A NO. 2968 OF 2008 2 **K.BABU, J. ===================== Crl.A.No.2968 of 2008** **=====================** Dated this the 27[th] July, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 29.11.2008 in S.C.No.469/2007 of the Additional Sessions Court, Adhoc II, Thalassery. The accused was convicted of the offence punishable under Section 58 of the Abkari Act by the impugned judgment. 2. The prosecution case is that on 12.9.2005 at 7 am., the accused was found in possession of 20 litres of illicit arrack in an autorickshaw bearing registration No.KL-13J-4965 at Sivapuram in Kannur district. The offence was detected by the Assistant Excise Inspector, Mattannur Range. 4. After completion of investigation, final report was submitted against the accused for offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Mattannur. The case was committed to the Sessions Court, Thalassery from where it was made over to the CRL.A NO. 2968 OF 2008 3 Additional Sessions Court, Thalassery. On appearance of the accused, charge was framed against him for offence punishable under Section 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. 5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P9. 6. 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 total 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 Section 58 of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/- under Section 58 of the Abkari Act. 7. Heard Sri.P.P.Ramachandran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent. CRL.A NO. 2968 OF 2008 4 8. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory. 9. 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. 10. 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 11. PW1, the then Assistant Excise Inspector, Mattannor was conducting vehicle checking at Shivapuram in Kolari amson on 12.9.2005 in the early morning. An autorickshaw bearing registration No.KL-13J-4965 driven by the accused reached the spot and the team led by PW1 inspected the vehicle. The excise officials found a black plastic can underneath the passenger’s seat, which on examination was found to be illicit arrack. The can contained 20 litres of arrack. PW1 seized the plastic can and 200 CRL.A NO. 2968 OF 2008 5 ml of arrack was drawn in another bottle as sample. The sample and the residue were sealed. PW1 prepared Ext.P1 seizure mahazar. The accused was arrested. The vehicle involved was also taken into custody by PW1. PW2, an independent witness examined to prove the incident proper, supported the prosecution case. PW4, the then Excise Inspector, Mattannoor conducted investigation and submitted final report. 12. The learned counsel for the appellant relied on the following circumstances to establish that the prosecution failed to prove that the contraband substance allegedly drawn from the place of occurrence was eventually subjected to examination at the Chemical Examiner's laboratory: a) PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent regarding the nature and description of the seal used. c) The specimen impression of the seal has not been produced before the court and made available to the Chemical Examiner for CRL.A NO. 2968 OF 2008 6 verification. 13. The oral evidence of PW1 is silent regarding the nature and description of the seal affixed on the bottle containing the sample. Ext.P1 seizure mahazar is also silent regarding the nature and description of the seal used. 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. The specimen of the seal shall be produced in the court. [vide: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)]** 14. Ext.P9 copy of the forwarding note does not contain the specimen impression of the seal affixed on the bottle containing the sample. There is absolutely no evidence to show that the specimen impression of the seal was provided to the Chemical Examiner for verification, so as to ensure that the sample seal so provided was tallied with the seal affixed on the bottle containing the sample. Ext.P8 contains a certification that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any positive evidence to show that the specimen impression of the seal was forwarded to the CRL.A NO. 2968 OF 2008 7 Chemical Examiner's laboratory, the certification contained in Ext.P8 cannot be accepted. The necessary conclusion is that the genuineness of the sample tested is doubtful. 15. This Court had occasion to consider a similar fact situation in **Rajamma v. State of Kerala (2014(1) KLT 506)** in which it was 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”. 16. 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 had been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P8 chemical analysis report. 17. Ext.P9 copy of the forwarding note is also silent with CRL.A NO. 2968 OF 2008 8 regard to the name of the person with whom the sample was sent for analysis. Ext.P8 would show that the sample was received in the laboratory through an Excise Guard Sri.Ratheesh C.P. There is no explanation as to why the space meant for writing the name of the Excise Guard with whom the sample was sent for analysis remained vacant in Ext.P9 copy of the forwarding note. 18. The learned Magistrate had not counter signed in Ext.P9. There is no evidence to show the date on which the sample was forwarded to the Chemical Examiner's laboratory. It is the admitted case of the prosecution that the sample changed several hands before it reached the Chemical Examiner's laboratory. The sample remained in the custody of the property clerk of the court, the excise official who received the sample from the court and the excise official Sri.Ratheesh C.P, who delivered the sample to the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. It was imperative for the prosecution to examine these witnesses to prove the tamper-proof despatch of the sample to the laboratory. 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 CRL.A NO. 2968 OF 2008 9 be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314], Kumaran v. State of Kerala (2016(4) KLT 718)** 19. 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. 20. 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 accused. **(vide: State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314].** 21. 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 benefit of doubt arising from the absence of link evidence. The appellant/accused is therefore not guilty of the offence CRL.A NO. 2968 OF 2008 10 punishable under Section 58 of the Abkari Act. He is acquitted of the charge. He is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K. BABU JUDGE** ab