Uthaman S/o Damodaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 12[TH] DAY OF AUGUST 2021 / 21ST SRAVANA, 1943** **CRL.A NO. 2129 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 237/2005 OF ADDITIONAL DISTRICT** **COURT (ADHOC-I), THODUPUZHA, IDUKKI CP 51/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS, ADIMALI, IDUKKI** ## **APPELLANT/ACCUSED:** UTHAMAN S/O.DAMODARAN, KOZHIYANTHARA VEEDU, KUTHUPARA KARA, VELLATHOOVAL VILLAGE. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE,, VELLATHOOVAL, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2129 of 2006 2 ## **K.BABU, J.** **--------------------------------------** ## **Criminal Appeal No.2129 of 2006** --------------------------------------Dated this the 12[th] day of August, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 09-10-2006, passed by the Additional Sessions Judge (Adhoc-I), Thodupuzha in S.C No.237/2005, the accused has preferred this appeal. 2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(h) of the Abkari Act. 3. The prosecution case is that on 26-08-2002 at 2.15 p.m the accused was found in possession of three bottles containing 375ml each and one bottle containing 200ml of Indian Made Foreign liquor near the residence of one David, Chalakkal house, Muthuvankudy in Kunjithanni Village, Idukki District. The Vellathooval police detected the offence. Crl.A No.2129 of 2006 3 4. After completion of the investigation, the final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(h) of the Abkari Act before the Judicial First Class Magistrate Court, Adimaly. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(h) of the Abkari Act. The accused pleaded not guilty to the charges and, therefore, he came to be tried by the trial Court for the aforesaid offences. 5. The prosecution examined PWs 1 to 9 and proved Exts.P1 to P7 and MOs 1 and 2. 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 innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused 4 Crl.A No.2129 of 2006 and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offences under Sections 55(a) and 55(h) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 1 year and to pay a fine of Rs.1 Lakh. 7. Heard Sri.C.K.Vidyasagar, the learned counsel appearing for the appellant/accused and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction: (a) The prosecution failed to establish the identity of the person who was carrying the contraband substance at the scene of occurrence. Crl.A No.2129 of 2006 5 - (b) The prosecution has not satisfactorily explained the delay in the production of the properties, including the sample, before the Court. - (c) The prosecution failed to establish that the contraband substance said to have been seized from the place of occurrence eventually reached the hands of the Analyst in the Chemical Examiner’s laboratory. 9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused. 10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not. ## **The Point** 11. PW5, the Head Constable in G.D charge of Vellathooval police station, on 26-08-2002, got 6 Crl.A No.2129 of 2006 reliable information that the accused was dealing with Indian Made Foreign Liquor at the place of occurrence. The police team led by PW5 proceeded to there. On seeing the police party, the accused ran away from the scene, leaving the contraband substance. PW5 seized the articles, abandoned by the accused, as per Ext.P1 seizure mahazar. PW5 recovered three bottles containing Indian Made Foreign liquor from the scene. He collected 180 ml of liquor each in 2 bottles as sample and sealed the same. 12. PWs 1 to 4, the independent witnesses examined to prove the incident proper, did not support the prosecution case. 13. PW7, the Police Constable who had accompanied PW5 in the search and seizure, supported the prosecution case. PW6 conducted part of the investigation. PW8 arrested the accused on 08-09-2002. PW9 completed the investigation and submitted the final report. Crl.A No.2129 of 2006 7 14. The learned counsel for the accused contended that the prosecution has not satisfactorily explained the delay in the production of the properties before the Court. The seizure was allegedly effected on 26-08-2002. PW5 admitted that the properties, including the bottles containing the sample, reached the Court only on 03-09-2002. Exhibit P5, the property list, also substantiates this. 15. PW5, the detecting officer, has not given any satisfactory explanation for the delay caused in the production of the properties before the Court. He deposed that on 03-09-2002, he had handed over the properties to a Police Constable for sending them to the Court. 16. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held as follows: - _“8. We, therefore, answer the reference as_ - _follows:_ Crl.A No.2129 of 2006 8 _1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied)_ The Division Bench held that the production of the property should take place without unnecessary delay, and there should be explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the properties. Unexplained delay in the production of the properties, including the bottles containing the sample, would lead to the conclusion that tampering with the samples could not be ruled out. 17. The learned counsel for the accused contended that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the scene of occurrence. The prosecution case is that on seeing the police party, Crl.A No.2129 of 2006 9 the accused ran away from the scene of occurrence after leaving the contraband substance at the scene. PWs 1 to 4, the independent witnesses, did not support the case of the prosecution that the accused was carrying the contraband substance at the place of occurrence. 18. PW5, the detecting officer, stated that he had previous acquaintance with the accused. He testified that the accused used to come to the police station. But, PW5 has not given any explanation as to the purpose for which the accused came to the police station as he pleaded. PW5 has no case that he has any personal acquaintance with the accused. In the absence of any convincing material to show that the witness (PW5) had previous acquaintance with the accused in the capacity as police officer his evidence to that effect is not believable. PW5 has not given evidence that the accused was involved in any other cases. No materials have been placed before the Court to convince that the accused had any reason to visit the police station. 10 Crl.A No.2129 of 2006 So, the version of PW5 that he had previous acquaintance with the accused is not credible. PW7, the other official witness who was present at the scene of occurrence, has no case that he had any previous acquaintance with the accused. 19. Going by the evidence of PWs 5 and 7, the two official witnesses examined to prove the incident proper, they had only a fleeting glimpse of the person who ran away from the scene. In Ext.P1 seizure mahazar, the detecting officer had not narrated any of the identifying features of the accused. Both PWs 5 and 7 identified the accused in the Court on 05-08-2006, after a long lapse of 4 years. Though the accused was arrested by the Investigating Officer on 08-09-2002, no test identification parade was conducted so as to enable the witnesses to identify the accused. The prosecution has no case that PWs 5 and 7 had any opportunity even to see the accused, so as to enable them to recollect and confirm the features of the man Crl.A No.2129 of 2006 11 who had run away from the scene. 20. The law is settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during trial. Where a witness identifies an accused, who is not known to him, in the court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his power of observation {vide: _**Kanan and others v. State of Kerala**_ (AIR 1979 SC 1127), _**Jameel v. State of Maharashtra**_ (AIR 2007 SC 971), _**Raja v. State by Inspector of Police**_ (AIR 2020 SC 254), _**State (Delhi Administration) v. V.C.Shukla and another**_ (AIR 1980 SC 1382), _**Mohd.Abdul Hafeez v. State of AP**_ (AIR 1983 SC 367), _**Mohanlal Gangaram Gehani vs State Of Maharastra**_ (AIR 1982 SC 839). Hence the identification of the accused by PWs 5 and 7 in the box is not acceptable. 21. The resultant conclusion is that the prosecution failed to establish the identity of the Crl.A No.2129 of 2006 12 person who was carrying the contraband substance at the place of occurrence. 22. The learned counsel for the accused further contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s laboratory. 23. PW5, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample. 24. In _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296) and in _**Krishnadas v. State of Kerala**_ [2019 KHC 191] this Court held that the detecting officer who drew the sample has to give evidence as to the nature of the seal affixed on the bottle containing the sample. 25. As discussed afore, the delay in the production of the bottles containing the sample before the Court has not been satisfactorily explained by the Crl.A No.2129 of 2006 13 prosecution. According to PW5, the articles, including the bottles containing the sample, remained in his custody till 03-09-2002. He further deposed that on 03-09-2002, the articles including the sample were entrusted to a Police Constable. He was unable to mention even the name of the Police Constable who received the same from him. The necessary inference is that a Police Constable attached to Vellathooval police station, whose name is not ascertainable, produced the sample before the Court on 03-09-2002. The articles, including the sample, were received by the Junior Superintendent of the Court. The bottles containing the sample reached the Chemical Examiner’s laboratory on 17-10-2002, as is evident from Ext.P7 certificate of chemical analysis. Exhibit P6, the copy of the forwarding note, is silent regarding the name of the official with whom the bottles containing the sample were forwarded to the laboratory. The prosecution is even unable to establish the date on which the samples Crl.A No.2129 of 2006 14 were forwarded to the Chemical Examiner. 26. The learned Magistrate, who put his initial in Ext.P6, the copy of the forwarding note, failed to mention the date on which he made the initial. The bottles containing the sample were delivered to the laboratory through a Police Constable No.1260. 27. The bottles containing the sample were handled by different officials. They include, (i) a Police Constable attached to Vellathooval police station, who received the samples from PW5 on 03-09-2002, whose name is not ascertainable, (ii) the Junior Superintendent of the Court, (iii) the property clerk of the Court, and (iv) the police official who received the samples from the Court and delivered to the Chemical Examiner’s laboratory. These officials were not examined by the prosecution to establish that the seals on the samples were not tampered with while in their custody. The prosecution ought to have examined the officials who handled the samples during different stages to rule out Crl.A No.2129 of 2006 15 tampering with the samples. 28. The inevitable conclusion is that the prosecution failed to rule out the possibility of the samples 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]}. 29. The samples reached the Chemical Examiner’s laboratory on 17-10-2002. The samples were analysed only on 24-04-2004. The prosecution has not offered any satisfactory explanation for the delay in the examination of the samples in the laboratory. This Court in _**Krishnadas v. State of Kerala**_ [2019 KHC 191] held thus: _“6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also,_ Crl.A No.2129 of 2006 16 _there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”_ In the instant case, the delay of more than one year in the analysis of the samples remains unexplained. 30. 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. 31. 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]}. 32. In the instant case, the prosecution was unable to establish the link connecting the accused Crl.A No.2129 of 2006 17 with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. The prosecution also failed to establish the identity of the person who was allegedly possessing the contraband substance at the scene of occurrence. 33. 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 offences punishable under Sections 55(a) and 55(h) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS