Varikkamthottiyil Jose s/o Varghese v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** ## **CRL.A.No.944 OF 2005** **AGAINST THE JUDGMENT IN SC 669/2004 OF ADDITIONAL SESSIONS COURT (ADHOC-I), KASARAGOD** ## **APPELLANT/ACCUSED:** **VARIKKAMTHOTTIYIL JOSE S/O.VARGHESE, PARAMBA DESOM, MALOM VILLAGE.** **BY ADVS. SRI.M.THAMBAN SMT.T.SUDHAMANI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI.B.JAYASURYA, SR.PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A.No.944/2005 2 ## **JUDGMENT** ## **Dated this the 22nd day of June 2020** The above appeal is filed by the accused in Sessions Case No.669 of 2004 on the file of the Additional Sessions Judge (Adhoc-I), Kasaragod. The Excise Inspector, Neeleswaram Excise Range charge sheeted the appellant alleging offence punishable under Section 55(a) of the Abkari Act. 2. The prosecution case is that on 1.8.2001, at 11.30 A.M., the accused was found in possession of 4 litres of arrack in a plastic can on the public road near the house of Karottu Veettil Antony, Hosdurg Taluk in contravention of the provisions of the Abkari Act. 3. To substantiate the case, prosecution examined PW1 to PW6. Exts.P1 to P7 were marked on the side of the prosecution. MO1 is material object. 4. Ongoing through the evidence and the documents, the trial court found that the accused is guilty Crl.A.No.944/2005 3 under Section 55(a) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for three months and to pay a fine of Rs.1,00,000/-. In default of payment, the accused was directed to undergo rigorous imprisonment for a further period of three months. The learned Sessions Judge reduced the sentence considering the facts and circumstances of the case. The relevant portion of the judgment by which the accused is sentenced is extracted hereunder : _“The accused has been heard on the question of sentence. He has submitted that he is in financial distress. He is to support his three children, wife and aged mother. He has only 18 cents of land. He is earning his bread by doing manual work. Two of his children are daughters and they are still not married. The accused does not deserve the benevolent treatment envisaged under the provisions of the Probation of Offenders Act. Dealing in illicit liquor results in financial loss to the State and it adversely affects public health also. At the same time the accused deserves leniency. Only a moderate quantity of arrack has been seized from his possession. Besides, he is burdened with his family consisting of his mother, wife and three children. In the result, the accused is sentenced to undergo rigorous_ Crl.A.No.944/2005 4 _imprisonment for three months and to pay a fine of Rs.1 lakh. In default of payment of fine, he shall undergo rigorous imprisonment or a further period of three months. He was in remand for the period from 1.8.2001 to 5.9.2001. This period of remand is set off against the period of substantive sentence of imprisonment.”_ 5. Aggrieved by the conviction and sentence, this Crl.Appeal is filed. 6. Heard the learned counsel for the appellant and the learned Public Prosecutor. 7. It is submitted that the appellant has got a definite case in his 313 statement, and he also adduced evidence through DW1 to substantiate his argument. DW1 deposed in court that on 1.8.2001 he went to the Government College, Elenthattu in the Company of the accused and his daughter. DW1 went to the college to admit his daughter there. The interview begun at 11 A.M. and the same was complete at 12.30 P.M. As soon as they came out of the college campus, the Excise jeep was seen parked in front of the gate. The Excise party told the accused that the arrack had been seized from his house. Crl.A.No.944/2005 5 They wanted the accused to accompany them to the Excise office. The accused was taken in the Excise jeep. The daughter of the accused returned home in an autorickshaw. The alleged seizure of the contraband happened on 1.8.2001 at 11.30 A.M. The learned Sessions Judge disbelieved the evidence of DW1 because of the reason that there is no chance for DW1 to accompany the accused on that day. When a definite case is put forward by the accused in his 313 statement, and when the accused adduced evidence to substantiate the case, the court below erred in rejecting the same without assigning any proper reason. The evidence adduced by the prosecution ought to have been considered in the light of the defence case. 8. Moreover, it is the duty of the prosecution to prove that the seized contraband reached in the hands of the analyst. The chemical analysis report, in this case, is marked as Ext.P6. The forwarding note is Ext.P5. As per the entry in Ext.P5 forwarding note, the same reached the Crl.A.No.944/2005 6 court on 1.8.2001 itself. It was forwarded to the analyst through one K.K.Velayudhan, Excise Guard. He is not examined this case. The analyst received the sample on 21.8.2001. The prosecution has not adduced any evidence to show that till the property is reached in the hands of the analyst, the property was in whose custody. 9. This Court in **Madhavan v. State of Kerala (2019 (4) KLT 18)** and in **Gireesh @ Manoj v. State of Kerala 2019 (4) KLT 79** observed that the prosecution has to prove all the links starting from seizure of the contraband article till the same is reached in the hands of the chemical analyst. The relevant portion of the judgment in _Madhavan_ 's case (supra) reads thus: _“19. Mere seizure of a bottle allegedly containing liquor from the possession of the appellant is not sufficient to prove the offence alleged against him. When the prosecution relies upon the report of chemical analysis in respect of the sample 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 sample till the same reached the hands of the chemical examiner._ Crl.A.No.944/2005 7 _20. Mere production of a laboratory report that the sample tested was liquor cannot be conclusive proof by itself. The sample seized and that tested have to be co-related [See Vijay Pandey Crl.A.No.2785/2008 10 v. State of Uttar Pradesh: 2019 (10) SCALE 129 : 2019 (3) KLT OnLine 3028 (SC)].”_ ## 10. The relevant portion of the judgment in _Gireesh_ 's case (supra) is extracted hereunder : _“15. When the prosecution relies upon 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._ _16. The aforesaid view has been taken by this Court in a catena of decisions [See Ravi v. State of Kerala (2011 (3) KLT353), 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. State of Kerala : AIR 1994 SC 117)._ _17. The principles mentioned above get support also from the very recent decision of the Supreme Court, in Vijay Pandey v. State of Uttar Pradesh: 2019 (10) SCALE 129 (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_ Crl.A.No.944/2005 8 _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 corelated". (emphasis supplied).”_ 11. In the light of the above discussion, I think the accused, in this case is entitled the benefit of doubt. Forwarding note reached the court on 1.8.2001. But the sample reached in the hands of analyst only on 21.8.2001. The prosecution has not proved the custody of the sample from 1.8.2001 till 21.8.2001. The Excise Guard to whom the sample was handed over as per Ext.P5, namely, K.K.Velayudhan is not examined in this case. Hence the prosecution has not proved all the links starting from seizure of the contraband article till it reaches in the hands of the analyst. Hence the accused is entitled the benefit of doubt. This Crl.Appeal is allowed. The conviction and sentence imposed on the appellant as per the judgment dated 20.4.2005 in S.C.No.669 of 2004 on the file of the Crl.A.No.944/2005 9 Additional Sessions Court (Adhoc-I), Kasaragod is set aside. The appellant is set at liberty. Bail bond, if any executed by him is cancelled. **Sd/-** ## **P.V.KUNHIKRISHNAN** **JUDGE** ## **csl**