Thulaseedharan, Raveendran and others v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 ``` ## **`CRL.A NO. 1152 OF 2008`** ``` AGAINST JUDGMENT SC 211/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` THULASEEDHARAN, RAVEENDRAN, KOCHUMOOKKUMPUZHA VADAKKATHIL, KOTTAKKUPURAM MURI, KULASEKHARAPURAM, KARUNAGAPPALLY. ``` ``` BY ADVS. SRI.BASANT BALAJI SRI.R.GOPAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT.REKHA(SR.GP) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1152 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1152 of 2008 --------------------------------------------- Dated this the 14[th ] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.05.2008, passed by the Additional District and Sessions Court (Adhoc)-II, Kollam in Sessions Case No.211 of 2006, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 55(g) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 03.07.2003, the accused was found in possession of 35 litres of wash intended for manufacturing liquor 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 55(g) 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 framed against him for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to ``` Crl.A.No.1152 of 2008 ``` ``` 3 ``` the charge and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P6, and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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 evidence against the accused and hence, he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(g) and 55(i) of the Abkari Act and convicted him thereunder. 6. Heard Sri. R.Gopan, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- - (1) The seizure of the contraband substance is doubtful as the provisions of Section 53A of the Abkari Act have not been followed. ``` Crl.A.No.1152 of 2008 ``` ``` 4 ``` (2) The prosecution failed to establish that the contraband allegedly seized from the place of occurrence was subjected to analaysis. 8. The alleged seizure was effected on 03.07.2003. According to the prosecution, PW3 seized 35 litres of wash from the possession of the accused at the scene of occurrence. It is the further case of the prosecution that after taking 500 ml of wash as sample, the rest of the wash was destroyed at the scene itself. PW3, while giving evidence stated that he had destroyed the wash in the possession of the accused after taking of the sample. 9. It is not necessary for the prosecution to produce the bulk quantity of the seized material before the Court during the trial of the case. As per Section 53A of the Abkari Act, the prosecution can produce the large quantity of the seized contraband before the Authorised Officer for disposal, after preparing an inventory by the Magistrate. 10. The certificate issued by the Magistrate in respect of the inventory of the contraband substance and the list of the samples drawn before him shall be treated by the Court as primary evidence of seizure of the material at the scene of occurrence. However, when the procedure contemplated in Section 53A of the Abkari Act ``` Crl.A.No.1152 of 2008 ``` ``` 5 ``` is not adopted and the bulk quantity of the liquor is not produced before the Court and no satisfactory evidence is adduced to show that the residue of the contraband substance was destroyed at the scene, the very seizure of the contraband substance as allegedly seized by the prosecution becomes doubtful. In such situation, the accused is entitled to the benefit of doubt. 11. In the present case, according to the prosecution after taking 500 ml as sample, the rest of the wash was destroyed at the scene. No procedure as contemplated in Section 53A of the Abkari Act was followed and no satisfactory evidence was produced before the Court to show that the contraband substance was destroyed at the scene as alleged. Resultantly, the appellant/accused is entitled the benefit of doubt. This view is fortified by the decision of this Court in **Balakrishna Rai v. State of Kerala (2020 (3) KHC 286)** and **Appachan v. State of Kerala. (2021 KHC 5855)** . 12. The learned counsel for the appellant further contended that the prosecution also failed to establish that the contraband seized at the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. He relied on the following circumstances to substantiate his contention:- ``` Crl.A.No.1152 of 2008 ``` ``` 6 ``` (a) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample (b) The forwarding note/requisition for sending sample was not produced and marked. 13. Ext.P1 does not contain the nature and description of seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was not forwarded to the Chemical Examiner's Laboratory to ascertain the genuineness of the sample produced for analysis. 14. 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. 15. 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 ``` Crl.A.No.1152 of 2008 ``` ``` 7 ``` sample, no evidentiary value can be attached to the Chemical Analysis Report. ## 16. In **Ramachandran v. State of Kerala (2021 (1) KLT 793)** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 17. The necessary conclusion is that the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to connect the accused with the contraband seized from the place of occurrence. 18. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569)** the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to ``` Crl.A.No.1152 of 2008 ``` ``` 8 ``` establish that the sample seized and that tested are the same. 19. 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 contraband substance said to have been seized from the possession of the accused {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala [2007 (1) KHC 275]}.** 20. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The amount, if any, deposited as per the directions of this Court shall be disbursed to the appellant as per law. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK