Uthaman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 1[ST] DAY OF NOVEMBER 2022 / 10TH KARTHIKA, 1944** **CRL.A NO. 710 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 641/2007 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/1ST ACCUSED:** UTHAMAN, S/O RAGHAVAN,LALIBHAVANAM, NEELIKULAM MURI, KULASEKHARAPURAM VILLAGE, KARUNAGAPPALLY. BY ADV SRI. SIJU KAMALASANAN SRI.PRATHEESH P ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR, KARUNAGAPPALLY, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SRI. RAJESH.A (P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.710 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.710 of 2008 --------------------------------------Dated this the 1[st] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 14.03.2008, passed by the Additional District and Sessions Court, Adhoc-II, Kollam in S.C.No.641/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 26.04.2005 the accused was found in possession of 10 litres of arrack in a can at Puthentheruvu in Karunagappally Taluk 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 8(2) 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, Crl.A No.710 of 2008 3 charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P8 and MO1. 5. After the closure of the prosecution evidence, 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 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. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. Siju Kamalasanan, the learned counsel appearing for the appellant/accused and Sri. Rajesh.A, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.710 of 2008 4 judgment of conviction and sentence on the ground that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) Exhibit 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) Exhibit P6 forwarding note/requisition for sending sample does not contain the name of the Excise guard with whom the sample was forwarded to the laboratory. - (c) The officials who handled the sample during its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 26.04.2005 by the Preventive Officer attached to Excise Range Office, Karunagappally (PW2). PW2 had drawn sample from the contraband substance seized at the scene of occurrence. He had prepared Ext.P1 seizure Crl.A No.710 of 2008 5 mahazar, the contemporaneous document prepared to evidence seizure. Exhibit P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW2 has not given evidence as to the nature of the seal used. There is no material to show that the specimen of the seal was produced before the Court at the time of production of the properties, including the sample. 10. In Bhaskaran K. v. State of Kerala and another (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. 11. Exhibit P6 is the forwarding note/requisition for sending sample to the laboratory. In Ext.P6, the space meant for mentioning the name of the Excise guard with whom the sample was forwarded to the laboratory is left vacant. The learned Magistrate who countersigned Ext.P6 did not mention the date on which he made his initial. The prosecution has not given evidence Crl.A No.710 of 2008 6 as to the date on which the sample was forwarded to the laboratory. While dealing with a similar fact situation, this 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 tamper-proof despatch of the sample to the laboratory Crl.A No.710 of 2008 7 could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the 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.” 12. In the present case, the property clerk of the Court, who retained the custody of the sample till the same was forwarded to the laboratory, and the Excise guard by name Sri.Benanzen, who delivered the sample to the laboratory, were not examined as witnesses to establish the tamper-proof despatch of the sample to the laboratory. It is relevant to note that Sri. Benanzen received the sample as shown in Ext.P7 Certificate of Chemical Analysis on 12.05.2005. But he delivered the same only on 13.05.2005. Nonexamination of the property clerk and the Excise guard, who delivered the sample to the laboratory, is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Crl.A No.710 of 2008 8 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. 14. 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]}. 15. In the instant case, the prosecution has miserably failed to establish the link connecting the accused 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. 16. 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. In the result, the Crl.A No.710 of 2008 9 appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS