ULAHANNAN vs STATE OF KERALA

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 6[TH] DAY OF AUGUST 2021 / 15TH SRAVANA, 1943 CRL.A NO. 1497 OF 2006** **AGAINST THE JUDGMENT DATED 27.07.2006 IN SC 151/2005 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA, WAYANAD APPELLANT/ACCUSED:** **ULAHANNAN AGED 38 YEARS S/O.CHERIYAN, KUTTANAL HOUSE, PANAYAMBAM, KIDANGADU VILLAGE, S.BATHERY, WAYANAD.** ## **BY ADV SRI.NIREESH MATHEW** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTING EXCISE INSPECTOR, S.BATHERY EXCISE RANGE, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.C. ASHI (P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1497 OF 2006** 2 ## **K. BABU J.** **------------------------------------** ## **Crl.A.No.1497 of 2006** **------------------------------------** Dated this the 6[th] day of August, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 27.07.2006, passed by the Additional Sessions Judge (Adhoc) II, Kalpetta in SC.No.151/2005. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 55(g) of the Kerala Abkari Act. 3. The prosecution case is that on 14.04.2004 at about 05.15 p.m., the accused was found in possession of 36 liters of illicit Wash at Panayambam in Kidanganad village. The offence was detected by a Preventive Officer of Excise Enforcement and Narcotic Special Squad, Wayanad. 4. After completion of investigation final report was submitted against the accused for the offence **CRL.A NO. 1497 OF 2006** 3 punishable under Section 55(g) of the Abkari Act before the Judicial First Class Magistrate Court-I, Sulthan Bathery. 5. The case was committed to the Sessions Court, Kalpetta, from where it was made over to the Trial Court. On 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 and therefore, he 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 5, Exts.P1 to P8 and MO.1 series. 7. 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 innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was 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. **CRL.A NO. 1497 OF 2006** 4 The learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 55(g) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of five years and to pay a fine of Rs.1,00,000/-. 8. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: - (a) The prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. - (b) The offence was detected by an incompetent officer and hence the whole prosecution case will have to collapse. **CRL.A NO. 1497 OF 2006** **==> picture [7 x 9] intentionally omitted <==** 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, the detecting officer, has given evidence that he was on patrol duty on 14.04.2004 at about 05.30 p.m. The Excise team led by him reached near an Anganvadi at Pallivayal-Panayambam mud road. PW1 found the accused carrying two tins and on inspection it was found that the tins contained 36 liters of Wash. The accused was arrested from the spot. PW1 seized the contraband substance found in the possession of the accused, as per Ext.P2 seizure mahazar. PW1 collected 500 ml of Wash in a 750 ml bottle as sample and sealed the same. PW1 produced the accused and the articles seized from the possession of the accused before the Excise Range Officer, Sulthan Bathery. **CRL.A NO. 1497 OF 2006** 6 13. PW2, an Excise Guard in the Special Squad, who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. PW3, an independent witness, did not support the prosecution case. PW4, the Preventive Officer, Sulthan Bathery Excise Range, had registered the case on the basis of the report given by PW1. PW5, the Excise Inspector, Sulthan Bathery Excise Range Office, conducted investigation and submitted final report before the Court against the accused. 14. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached 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.P2 seizure mahazar, the contemporaneous **CRL.A NO. 1497 OF 2006** 7 document evidencing seizure, is also silent regarding the nature and description of the seal affixed on the bottle containing the sample. (c) Ext.P6, copy of the forwarding note, is silent regarding the person with whom the sample was sent to the Chemical Examiner's laboratory. - (d) The Excise official concerned, though, received the sample from the court on 15.04.2004, the same reached the laboratory only on 30.04.2004. 15. The oral evidence of PW1, the detecting officer, is silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. Ext.P2, seizure mahazar, is also silent regarding the nature and description of the seal stated to have been affixed on the bottle containing the sample. 16. 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. [vide: **Bhaskaran v. State of Kerala and another** **CRL.A NO. 1497 OF 2006** 8 (2020 KHC 5296), **Krishnadas v. State of Kerala** (2019 KHC 191)]. 17. The learned Counsel for the appellant/accused further contended that there is absolutely no evidence to show the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory. On a perusal of Ext.P6, the copy of the forwarding note, it is seen that the space meant for writing the name of the official with whom the sample was sent to the Chemical Examiner's laboratory remained unfilled. Ext.P6, the copy of the forwarding note, has not been countersigned by the learned Magistrate concerned. This Court is kept in the dark as to the name of the Excise official who received the sample from the court and the date on which the said official received the same. 18. The learned Magistrate was expected to put his initials with date in Ext.P6 so as to ascertain the date on which the sample was forwarded to the laboratory. 19. While considering a similar fact situation, this **CRL.A NO. 1497 OF 2006** 9 ## Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], ## held thus: “7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or - the Excise guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the **CRL.A NO. 1497 OF 2006** 10 revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” (Emphasis supplied) 20. It was imperative for the prosecution to examine the thondy clerk of the court or the Excise official concerned to prove the tamper-proof despatch of the sample to the laboratory. In the instant case none of these officials were examined as witnesses, the benefit of which must go to the accused. 21. Yet another important aspect projected by the learned counsel for the accused is that though the sample was forwarded on 15.04.2004 from the court, the same reached the laboratory only on 30.04.2004. 22. As I have mentioned above, the date on which the sample was forwarded to the Chemical Examiner's laboratory is not traceable either from Ext.P6 or any of the contemporaneous documents prepared. What is describable from Ext.P8 certificate of chemical analysis is that as per reference letter 15.04.2004, the sample **CRL.A NO. 1497 OF 2006** 11 was forwarded by the Judicial First Class Magistrate Court-I, Sulthan Bathery to the laboratory. In the absence of any contra evidence this Court has to infer that the sample was forwarded from the court on 15.04.2004. Ext.P8 would further show that the sample reached the laboratory only on 30.04.2004. The prosecution has not placed any explanation for the delay caused in bringing the sample to the laboratory. The custody of the sample from 15.04.2004 to 30.04.2004 has not been explained by the prosecution. In such a circumstance, the prosecution ought to have examined the property clerk of the court or the Excise official who delivered the sample in the Chemical Examiner's laboratory to establish that the seal on the sample was not tampered with. 23. While dealing with a similar fact situation this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and **CRL.A NO. 1497 OF 2006** 12 explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”. 24. It is the admitted case of the prosecution that the sample remained in the custody of the property clerk of the court, the Excise official who received the sample from the court and Sri.E.S.Unnikrishnan, the Excise Guard, who delivered the sample to the Chemical Examiner's laboratory on 30.04.2004, after a lapse of 15 days from the date on which the same was received from the court. The effect of the non examination of those officials 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. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3) SCC 303]). 25. In **Vijay Pandey v. State of U.P** (AIR 2019 SC **CRL.A NO. 1497 OF 2006** 13 3569), the Apex Court held that mere production of a 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. 26. 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. 27. 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 as discussed above. 28. Learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire **CRL.A NO. 1497 OF 2006** 14 prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, a Preventive Officer of Excise Enforcement and Narcotic Special Squad, Wayanad. The detection was made on 14.04.2004. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 **CRL.A NO. 1497 OF 2006** 15 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 29. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 30. The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh** 's case (supra) held that a case built on the detection made by **CRL.A NO. 1497 OF 2006** 16 an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 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. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS