Udayan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **CRL.A.No.2783 OF 2008** **AGAINST THE JUDGMENT IN SC 304/2007 DISPOSED BY THE ADDITIONAL SESSIONS JUDGE/SPECIAL JUDGE FOR THE TRIAL OF (NDPS ACT CASES), THODUPUZHA** ## **APPELLANT/ACCUSED:** **UDAYAN** **S/O VASUDEVAN, CHEMPAKAPPALLIL, PODUMATTOM KARA,ARAKULAM VILLAGE.** **BY ADV. SRI.S.RAJEEV** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM (CRIME NO.13/2007 OF KULAMAVU POLICE, STATION)** **PP. SRI.E.C. BINEESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26-08-2019, THE COURT ON 04-09-2019 PASSED THE FOLLOWING:** **CRL.A.No.2783 OF 2008** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- **Crl.Appeal No.2783 of 2008** ----------------------------------------------------Dated this the 4[th] day of September, 2019 ## **JUDGMENT** The appellant is the accused in the case S.C No. 304/2007 of the Court of Session, Thodupuzha. Conviction entered and sentence passed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, 1077 are challenged in the appeal. 2. The prosecution case is that on 02.03.2007, at about 18:15 hours, the appellant sold Indian Made Foreign Liquor (for short 'IMFL') in front of the comfort station near the bus station at the place Kulamavu in Arakkulam Village and that he was found having in his possession 2.750 litres of IMFL without any authority. 3. PW4 Sub Inspector detected the offence. He arrested the appellant from the spot and seized the bottles of liquor and other material objects as per Ext.P1 mahazar and registered Crime No.13/2007 of Kulamavu police station in the matter. After completing the investigation, he filed charge **CRL.A.No.2783 OF 2008** **3** sheet against the appellant for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. 4. The appellant pleaded not guilty to the charge framed by the trial court for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. PW1 to PW4 were examined and Exts P1 to P12 and MO1 series to MO7 were marked on the side of the prosecution. No evidence was adduced by the appellant. 5. The trial court found the appellant guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act and convicted him thereunder. The trial court sentenced the appellant to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo simple imprisonment for a period of six months (judgment of the trial court does not reveal for which offence the aforesaid sentence was imposed on the appellant). 6. Heard learned counsel for the appellant and the learned Public Prosecutor and perused the records. 7. PW1 and PW2 are the independent witnesses examined by the prosecution to prove the occurrence. They **CRL.A.No.2783 OF 2008** **4** denied having seen the incident. But they admitted their signature in Ext.P1 mahazar. 8. The only other occurrence witness examined by the prosecution is PW4 Sub Inspector who detected the offence. He gave evidence that, on 02.03.2007, on getting secret information that the appellant was selling liquor in front of the comfort station at the bus station at Kulamavu, he reached there and then he saw the appellant pouring some liquid from one bottle into a glass and giving it to another person with water. He also gave evidence that the person who got the liquid from the appellant gave Rs.50/- to the appellant. PW4 gave evidence that he seized the bottle containing the liquid from the possession of the appellant as per Ext.P1 mahazar. He also seized two bottles containing liquid which were found near the appellant as per the mahazar. 9. The three bottles which contained liquid which were allegedly seized by PW4 Sub Inspector from the possession of the appellant were sent for chemical analysis. Ext.P12 is the report of chemical analysis. It shows that the bottles contained IMFL free from noxious ingredients injurious to health. **CRL.A.No.2783 OF 2008** **5** 10. Learned counsel for the appellant contended that though the person who allegedly purchased liquor from the appellant was at the spot and though he was identified by the police, he was not made an accused or a witness in the case. Learned counsel further contended that there is no assurance that Ext.P12 chemical analysis report relates to the liquid allegedly seized from the possession of the appellant. 11. _Per contra_ , learned Public Prosecutor would submit that the fact that, the person who purchased liquor from the appellant was not made a witness or accused in the case, is not fatal to the prosecution case. It is also contended that the bottles containing liquid, which were seized from the possession of the appellant, were produced before the court on the next day itself in a sealed condition and there was no chance of tampering with them and therefore, there cannot be any doubt with regard to the fact that the certificate of chemical analysis relates to the liquid seized from the possession of the appellant. 12. The evidence of PW4 Sub Inspector reveals that the person who allegedly purchased liquor from the appellant was one Sajeevan and that he had not run away from the spot. **CRL.A.No.2783 OF 2008** **6** The prosecution has got a case that Sajeevan consumed the liquor which was purchased from the appellant at the spot which was a public place. Even then, he was not arrested by the police and no case was registered against him. He was not even made a witness in the case against the appellant. The evidence of PW4 regarding sale of liquor by the appellant to a person by name Sajeevan is not corroborated by the evidence of any other witness. The prosecution did not even examine any police constable who was in the police party led by PW4. In such circumstances, the evidence of PW4 that he saw the appellant selling liquor to a person by name Sajeevan does not inspire the confidence of the court and it cannot be believed. It follows that the prosecution has not proved beyond reasonable doubt that the appellant committed an offence punishable under Section 55(i) of the Abkari Act. 13. PW4 has given evidence that he seized the bottle containing liquid which was in the hands of the appellant and also two other bottles of liquid found near him as per Ext.P1 mahazar. He has stated that he sealed the bottles of liquid and affixed label on them which contained his signature and also the signature of the appellant and the witnesses and **CRL.A.No.2783 OF 2008** **7** marked them as S1, S2 and S3. This is also a fact stated in Ext.P1 mahazar. 14. The bottles allegedly containing liquor were produced before the court on 03.03.2007. Ext.P9 is the property list prepared by PW4 for producing the properties in the court. Ext.P10 is the copy of the forwarding note prepared by PW4 for sending the samples for chemical analysis. PW4 had not taken separate sample from the liquid in the three bottles. The three bottles of liquid, as a whole, were sent for chemical analysis. 15. The description of the samples of liquid given in Ext.P9 property list and Ext.P10 forwarding note does not show that there was any label on them which contained the signature of PW4 and the appellant and the witnesses. It also does not show that there was any mark as S1, S2 and S3 on them. It creates doubt as to whether the very same bottles of liquid allegedly seized by PW4 from the possession of the appellant were produced before the court as per Ext.P9 property list and forwarded to the laboratory as per Ext.P10 forwarding note. **CRL.A.No.2783 OF 2008** **8** 16. Mere seizure of bottles containing some liquid from the possession of the appellant, even if accepted as true, does not prove the offence punishable under Section 55(a) of the Abkari Act against him. The prosecution has to prove that the bottles seized from the possession of the appellant contained liquor. 17. When the prosecution relies upon the report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner. 18. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT 353), Joseph v. State of Kerala (2009 (4) KHC 537), Sathi v. State of Kerala (2007 (1) KHC 778) and Sasidharan v. State of Kerala (2007 (1) KLT 720)]. Authority for this view can also be had from various decisions of the Supreme Court (See State of Rajasthan v. Daulat Ram : AIR 1980 SC 1314 and Valsala v. **CRL.A.No.2783 OF 2008** **9** State of Kerala : AIR 1994 SC 117). 19. The principles mentioned earlier get support also from the very recent decision of the Supreme Court in **Vijay Pandey v. State of Uttar Pradesh** (judgment dated 30.07.2019 in Criminal Appeal No.1143 of 2019) wherein it has been held as follows: _“The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The - sample seized and that tested have to be co related”._ (emphasis supplied) _._ 20. The upshot of the discussion above is that the conviction entered and the sentence passed against the appellant under Sections 55(a) and 55(i) of the Abkari Act cannot be sustained. The appellant is entitled to be acquitted. 21. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant by the **CRL.A.No.2783 OF 2008** **10** trial court under Sections 55(a) and 55(i) of the Abkari Act is set aside. The appellant is found not guilty of the aforesaid offences and he is acquitted. Bail bond, if any, executed by the appellant stands cancelled and he is set at liberty. Fine amount, if any, remitted by the appellant shall be refunded to him. **Sd/- R. NARAYANA PISHARADI JUDGE** lsn