Thomas @ Thamban v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 11[TH] DAY OF AUGUST 2021 / 20TH SRAVANA, 1943 CRL.A NO. 1886 OF 2006** **AGAINST THE JUDGMENT IN SC 1736/2003 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM** **APPELLANT/ACCUSED:** **THOMAS @ THAMBAN, S/O CHACKO, PLACHIPOIKA VEEDU, VELICHIKKALA CHERRI, NEDUMPANA VILLAGE, KOLLAM DISTRICT.** BY ADV B.MOHANLAL ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, CHATHANOOR POLICE STATION, KOLLAM DISTRICT, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR SRI. M.C. ASHI** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.1886 of 2006 2 **K.BABU, J. ===================== Crl.A.No.1886 of 2006** **=====================** Dated this the 11[th] August, 2021 ## **JUDGMENT** Challenge in this appeal is to the judgment dated 29.8.2006 in S.C.No.1736/2003 of the Additional Sessions Court, (Adhoc)II, Kollam. The accused was convicted of the offence punishable under Section 8(2) of the Abkari Act by the impugned judgment. 2. The prosecution case is that on 3.9.2000, the accused was found in possession of 14 plastic covers each containing 100 ml of arrack near the residence of the accused at Velichikala. The offence was detected by the Sub Inspector of Police, Chathannur. 3. After completion of investigation, final report was submitted against the accused for offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the Judicial First Class Magistrate Court, Paravoor. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Adhoc) II, Kollam. On appearance of the Crl.A.No.1886 of 2006 3 accused, charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P4. 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 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 the arguments addressed from both sides, found that the accused is guilty of offence punishable under Section 8(2) 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/-. 6. Heard Sri.B.Mohan Lal, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. Crl.A.No.1886 of 2006 4 7. The learned counsel for the appellant contended that the prosecution failed to establish the identity of the person who was found in possession of the contraband substance at the place of occurrence. It is further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of analyst in 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. PW4, the detecting officer, gave evidence that on 3.9.2000, the accused was found in possession of the contraband substance near his residence. He further deposed that on seeing the police party, the accused ran away from the scene and he was arrested from his house on 24.10.2000. PW3, the police official Crl.A.No.1886 of 2006 5 who had accompanied PW4 in the search and seizure, supported the prosecution. PWs 1 and 2, the independent witnesses, did not support the prosecution. 11. The learned counsel for the appellant contended that the prosecution failed to establish the identity of the person who was found in possession of the contraband substance at the scene of occurrence. The case of the prosecution is that on getting reliable information that the accused was engaged in the sale of illicit arrack, the police party led by PW4 reached near his residence and on seeing the police party, the accused ran away from the scene. 12. PWs 3 and 4, the official witnesses, identified the accused during the trial. Their specific case is that they had previous acquaintance with the accused and they could identify the accused on the date of occurrence itself. 13. The challenge on the evidence relating to identification of the accused by the official witnesses, is as follows: a) The detecting officer failed to narrate the identifying features of the person allegedly ran away from the scene of occurrence after leaving the contraband articles. b) PWs 3 and 4 had only a fleeting glimpse of the man who left the scene, on seeing the police party. Crl.A.No.1886 of 2006 6 c) The case of PWs 3 and 4 to the effect that they had previous acquaintance with the accused, is not credible. 14. Ext.P1 is the seizure mahazar prepared at the scene of occurrence by the detecting officer. The seizure mahazar is a contemporaneous document, evidencing seizure of the contraband substance. It is narrated in Ext.P1 that the police party proceeded to the place of occurrence on getting reliable information that the accused was engaged in the sale of illicit arrack near his residence. PWs 3 and 4 stated that when they reached the scene of occurrence, the accused escaped from the scene leaving the contraband substance. In Ext.P1, the name of the accused is mentioned. No identifying features of the person who left the scene, had been incorporated in Ext.P1. The distance from the place where PWs 3 and 4 saw the accused is also not mentioned in Ext.P1. 15. PWs 3 and 4 failed to mention any of the identifying features of the person who ran away from the place of occurrence, while giving evidence. Both the witnesses deposed that as the accused was involved in another abkari offence, they had acquaintance with him. But they failed to place the details of the case in which he was the accused, while giving evidence. They Crl.A.No.1886 of 2006 7 also failed to produce any documents to establish that he was involved in another criminal case. So the credibility of the version of PWs 3 and 4 to the effect that they had previous acquaintance with the accused, is doubtful. Of course, the accused was arrested on 24.10.2000, within a month after the incident. But the arrest of the accused a month after the incident will not serve the purpose of identification as the question is whether PWs 3 and 4 committed a mistake in identifying the person who was carrying the contraband substance at the scene. In the absence of any evidence regarding the identifying features of the person who ran away from the scene of occurrence and the further fact that the credibility of the version of the official witnesses about their previous acquaintance with the accused is doubtful, it cannot be concluded that the prosecution established that it was the accused, who had carried the contraband substance at the scene of occurrence beyond reasonable doubt. 16. The learned counsel for the appellant further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of Chemical analyst. 17. The detecting officer has not given evidence as to the nature and description of the seal affixed on the bottle containing Crl.A.No.1886 of 2006 8 the sample. Ext.P1 seizure mahazar does not contain any narration as to the nature and description of the seal used. The specimen impression of the seal had not been produced before the court and forwarded to the Chemical Examiner for verification. 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. (See: **Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191).** 18 **.** In the instant case, there is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. 19. The copy of the forwarding note, wherein the specimen impression of the seal is to be mentioned, has not been produced before the court and marked. The importance of the forwarding note, which contains the specimen impression of the seal stated to have been affixed on the sample, is that it facilitates the Chemical Examiner to ascertain that the very same sample drawn from the place of occurrence eventually reached the laboratory. The forwarding note also contains the name of the person with whom Crl.A.No.1886 of 2006 9 the sample is sent from the court to the analyst. Hence the non production of the forwarding note makes it impossible to ascertain the genuineness of the sample sent to the Chemical Examiner. In **Ramachandran v. State of Kerala (2021(1) KLT 793)** this Court held thus: “Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.” ## 20. 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”. Crl.A.No.1886 of 2006 10 21. 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.P4 chemical analysis report. 22. This Court is kept in the dark as to the name of the police official with whom the sample was forwarded to the Chemical Examiner. Ext.P4 would show that the bottle containing the sample reached the laboratory on 2.12.2000. The sample remained in the custody of the property clerk of the court. The resultant conclusion is that the sample changed several hands before it reached the Chemical Examiner's laboratory. The officials who handled the sample during different stages have not been examined as witnesses. The examination of these witnesses is essential to establish that while in their custody the seals remained tamper-proof. 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 be proved affirmatively by the prosecution (See: **State of** ## **Rajasthan v. Daulat Ram [AIR(1980)SC 1314]** 23. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the laboratory report Crl.A.No.1886 of 2006 11 that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 24. 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 found guilty of the offence punishable under Sections 8(2) of the Abkari Act. In the result, - (i) the appeal is allowed. - (ii) The judgment of conviction and sentence passed in S.C.No.1736/2003 by the Additional Sessions Judge, (Adhoc) II, Kollam is set aside. - (iii) The accused is acquitted of the offence punishable under Section 8(2) of the Abkari Act. - (iv) The accused is set at liberty. ## **Sd/-** **K. BABU** **JUDGE** ab