Vasu, Bhanuvilasam (Plantthottil) Mynagappally South, Kunnathoor Taluk, Kollam v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944** **CRL.A NO. 1058 OF 2006** **AGAINST THE JUDGMENT IN SC 654/2004 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT (ADHOC) III, KOLLAM CP 68/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, SASTHAMCOTTA** ## **APPELLANT/ACCUSED:** VASU, BHANUVILASAM (PLANTHOTTIL)MYNAGAPPALLY SOUTH, KUNNATHOOR TALUK, KOLLAM. BY ADV SRI.B.SURESH KUMAR ## **RESPONDENT/STATE:** THE STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR OF POLICE, SASTHAMCOTTA EXCISE RANGE,KOLLAM. BY ADV SMT. REKHA.S (SR.G.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1058 of 2006 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1058 of 2006 --------------------------------------Dated this the 18[th] day of May, 2022 ## JUDGMENT This appeal is directed against the judgment dated 16.05.2006 in S.C.No.654/2004 passed by the Additional District and Sessions Judge (Adhoc-III), Kollam. The appellant/accused was convicted under Section 8(2) of the Abkari Act and was sentenced to undergo simple imprisonment for a term of one year and to pay a fine of Rs.1 Lakh. 2. The case of the prosecution is that on 25.05.2000 at 1.15 a.m. the Excise Inspector attached to Kunnathoor Excise Circle Office found the accused carrying about 3.5 litres of illicit arrack in a plastic can at South Mynagappally. 3. After completing the investigation, the final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Sasthamcotta. The case was committed to the Crl.A No.1058 of 2006 3 Sessions Court, Kollam from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. He pleaded not guilty to the charge and therefore he came to be tried. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MOs 1 and 2. After trial, the accused was convicted and sentenced under Section 8(2) of the Abkari Act. 5. During the pendency of this appeal, the appellant died. Notice was served on the legal heirs of the appellant so as to afford an opportunity to them to proceed with the appeal under the proviso to Section 394 Cr.P.C. None of the near relatives of the appellant turned up. 6. Heard Sri.B.Suresh Kumar, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the respondent/State. 7. It is trite that on the death of the appellant/accused in the case of a composite sentence of fine and imprisonment, the appeal shall not abate and this Court is bound to decide the appeal on Crl.A No.1058 of 2006 4 merits, after giving sufficient opportunity to the near relatives of the appellant to proceed with the appeal against the sentence or fine. The Apex Court decision in Ramesan v. State of Kerala [(2020) 3 SCC 45] has declared the law on this aspect. 8. The offence was detected by the Excise Inspector (PW1), Kunnathoor Excise Circle Office. On 25.05.2000, while PW1 was on patrol duty the accused was found in possession of the contraband substance at South Mynagappally. PW1 seized the contraband substance from the possession of the accused as per Ext.P3 seizure mahazar. The accused was arrested from the spot. 9. PW1 gave evidence in support of the prosecution. PW2 is a Preventive Officer attached to Kunnathoor Circle Office, who had accompanied PW1 in the search and seizure. He also supported the prosecution version. PW5, the Excise Inspector, Sasthamcotta Excise Range registered the crime against the accused. PW5 conducted the investigation and submitted the final report against the accused. From the side of the defence, it was contended that the prosecution failed to establish the link evidence to ensure that the contraband substance allegedly seized from the place of occurrence Crl.A No.1058 of 2006 5 ## eventually reached the Chemical Examiner's laboratory. 10. The detecting officer, who has drawn the sample, has not given evidence as to the nature of the seal affixed on the bottles containing the sample. Exhibit P3 seizure mahazar also does not contain the nature of the seal used by the detecting officer. 11. 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 has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. It was further held that the nature of the seal used shall be mentioned in the seizure mahazar. 12. Exhibit P7 is the copy of the forwarding note prepared by the Investigating Officer. Exhibit P7 does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory. In Ext.P7 the learned Magistrate did not mention the date on which he made his initial thereon. This is more relevant, particularly when the name of the official with whom the sample was sent for analysis is not mentioned. 13. While considering a similar fact situation this Court in Crl.A No.1058 of 2006 6 ## 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 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.” Crl.A No.1058 of 2006 7 14. The sample was produced before the Court on 25.05.2000 itself. No evidence was adduced by the prosecution as to who received the sample at the Court. Exhibit P7 forwarding note is silent as to the official who received the sample from the Court and the date on which it was forwarded to the Chemical Examiner's laboratory. Exhibit P8 certificate of analysis shows that the sample was delivered to the laboratory on 01.06.2000 through an Excise Guard by name Anilkumar. The available materials show that the sample remained in the custody of different officials. It changed several hands. The sample remained in the custody of the officer of the Court who received the same, the Excise official concerned who received the same from the Court and the Excise official who delivered the same to the laboratory. None of these officials were examined by the prosecution to establish the tamper-proof despatch of the sample from the Court to the laboratory. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it remained in the hands of the officials concerned. This view is supported by the decision of the Crl.A No.1058 of 2006 8 Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)]. 15. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 16. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 17. 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 Crl.A No.1058 of 2006 9 ## (1) KHC 275]}. 18. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 19. 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 conviction and sentence passed by the Court below stand set aside. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS