Vijayan Pillai S/o Vasudevan Pillai v. State of Kerala and The Sub Inspector of Police, Kottarakkara Police Station

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 CRL.A NO. 1851 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 166/2002 OF ADDITIONAL** **SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),** ## **KOTTARAKKARA** ## **APPELLANT/S:** **VIJAYAN PILLAI S/O VASUDEVAN PILLAI, KUZHUVELIL VEEDU, NEAR PANCHAYAT OFFICE, VETTIKAVALA MURI AND VILLAGE.** **BY ADV ALEXANDER GEORGE** ## **RESPONDENT/S:** **1 STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.** **2 THE SUB INSPECTOR OF POLICE KOTTARAKARA POLICE STATION, KOLLAM DIST.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A No.1851/2006** -2- ## **K.BABU, J.** **========================= Crl.A No.1851/2006 ========================== Dated this the 7[th] day of July, 2021** **JUDGMENT** **Aggrieved by the judgment dated 7.8.2006, passed by the learned Additional Sessions Judge (Abkari Act cases), Kottarakkara, in S.C.No.166/2002, the accused has preferred this appeal.** **2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act.** **3. The prosecution case is that on 23.10.1999 at 6.15 p.m., the accused was in possession of two liters of illicit arrack in a jerry can having a capacity of 2½** ## **Crl.A No.1851/2006** -3- **litres, for sale, near the pan shop owned by one Parameswaran Pillai, near the main gate of Vettikkaval temple.** **4. After completion of the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, before the Judicial Magistrate of First Class-I, Kottarakkara. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Abkari Act cases), Kottarakkara.** **5. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of** **Crl.A No.1851/2006** -4- **the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the learned Additional Sessions Judge for the aforesaid offences.** **6. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6 and MOs1 to 3. On the side of the defence, DW1 was examined and Ext.D1 was marked.** **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 is evidence against the accused and hence he was called upon to enter on his defence and to adduce** ## **Crl.A No.1851/2006** -5- **evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences under Sections 55(a) and 55(i) of the Abkari Act and he was convicted thereunder. He was sentenced to undergo simple imprisonment for a term of two years each and to pay a fine of Rs.1,00,000/- each under Sections 55(a) and 55(i) of the Abkari Act.** **8. Heard Sri.Alexander George, the learned counsel appearing for the accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondents.** **9. The learned counsel for the appellant raised the following grounds to challenge** **Crl.A No.1851/2006** -6- ## **the impugned judgment:** **a) There is inordinate delay in producing the properties before the court.** **b) The prosecution failed to establish that the contraband** **substance said to have been seized from the possession of the accused ultimately reached the hands of the Public Analyst at the Chemical** **Examiner's laboratory.** **c) There is no satisfactory explanation for the delay in analysing the sample at the Chemical Examiner's laboratory.** **10. The learned Public Prosecutor, per** **Crl.A No.1851/2006** -7- **contra, submitted that the prosecution could well establish the charges 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. PW3, the Inspector of Police, Kottarakkara Police Station, detected the offence. He gave evidence that on 23.10.99 in the evening, while he was on patrol duty, at about 6.15 p.m., the accused was found in possession of two litres of illicit arrack in a jerry can. The accused had also possessed a drinking glass. PW3 collected** **Crl.A No.1851/2006** -8- **150 ml each in two bottles as sample from the arrack seized. PW3 arrested the accused from the scene. PW3 prepared Ext.P5 seizure mahazar.** **13. PW1, the Police Constable who had accompanied PW3, supported the prosecution case. PW2 the Assistant Sub Inspector attached to Kottarakkara Police Station was entrusted with the accused, the contraband articles and the other contemporaneous records prepared at the scene by PW3. PW2 registered Ext.P1 FIR. PW2 has given evidence that the contraband articles seized from the possession of the accused were kept in the Police Station and were produced before the court on 23.1199 as per Ext.P3** **Crl.A No.1851/2006** -9- **property list. PW2 produced currency notes seized from the possession of the accused on 27.10.1999 as per Ext.P4. PW4 the Sub Inspector of Police, Kottarakkara Police Station conducted investigation.** **14. The learned counsel for the accused submitted that the contraband articles allegedly seized on 23.10.1999 were produced before the court only on 23.11.1999. PW2, the Assistant Sub Inspector, Kottarakkara Police Station deposed that the properties including the sample bottles were kept in the police station till 23.11.1999. He failed to give any explanation as to the delay in the production of the properties** **Crl.A No.1851/2006** -10- **before the court. There is no satisfactory explanation for the delayed production of the properties. The learned Additional Sessions Judge recorded the finding that the contraband articles were produced before the court on 27.10.1999 without delay. This finding of the learned Sessions Judge is based on Ext.P4 property list, by which three currency notes allegedly seized from the possession of the accused were produced before the court. The learned Sessions Judge ignored Ext.P3 property list, by which the sample bottles and the residue of the arrack allegedly seized from the possession of the accused were produced before the court on 23.11.99 and the oral evidence of** **Crl.A No.1851/2006** -11- **PW2 to the effect that the contraband articles were produced before the court only on 23.11.1999.** **15. On the question of delay in production of the properties, the Division Bench of this Court in Ravi v. State of Kerala & another (2011(3) KHC 121) held thus:** **“8. We therefore, answer the reference as follows:** **(1).It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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)** **Crl.A No.1851/2006** -12- **16. The Division Bench held that production of the property before the court 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 satisfactory explanation for the delay in production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out.** **17. The learned counsel for the appellant further contended that the prosecution miserably failed to establish that the contraband substance, allegedly recovered from the possession of the** **Crl.A No.1851/2006** -13- **accused, ultimately reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions:** **i. The official witnesses have not given evidence as to the nature and description of the seal affixed on the sample bottles.** **ii. Ext.P5, seizure mahazar, the** **contemporaneous document evidencing** **seizure, does not contain any narration as to the nature and description of the seal used.** **iii. The copy of the forwarding note, which usually contains the specimen seal, has not been produced before the court.** **Crl.A No.1851/2006** -14- **18. I have gone through the depositions of the witnesses and Ext.P5 mahazar. The official witnesses have not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Ext.P5, seizure mahazar, does not contain the specimen of the seal stated to have been affixed on the bottles containing sample.** **19. In Bhaskaran v. State of Kerala and another (2020 KHC 5296), while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus:** **“21. The detecting officer, who has drawn the sample, has to give evidence as** ## **Crl.A No.1851/2006** -15- **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. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala : 2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the** **Crl.A No.1851/2006** -16- **hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied)** ## **20. In Krishnadas v. State of Kerala** ## **(2019 KHC 191) this Court held thus:** **“7. PW6 stated that he received the properties at the Range Office after two days, and he does not know in whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty.” (Emphasis supplied)** **21. The learned counsel further contended** **Crl.A No.1851/2006** -17- **that there is nothing to show that specimen seal was provided to the chemical examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the bottles containing the sample. There is absolutely no evidence as to the nature and description of the seal affixed on the bottles and that the same has been provided to the Chemical Examiner. The copy of the forwarding note, which contains the specimen of the seal used and the name of the official with whom the sample bottle was entrusted for delivering the same to the Chemical Examiner's laboratory, has not been produced and marked in this case. In Ramachandran v. State of Kerala (2021(1) KLT** **Crl.A No.1851/2006** -18- ## **793) while dealing with a case in which forwarding note was not produced and marked, this Court held thus:** **“Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”** **22. In Rajamma v. State of Kerala** ## **(2014(1) KLT 506), this Court held thus:** **“The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the Court. So, absolutely there is no evidence to convince the Court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW1 has been provided to the chemical examiner for their verification** ## **Crl.A No.1851/2006** -19- **and to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant”.** **23. In view of the fact that there is no evidence to convince the court that the specimen seal or the specimen impression of the seal has been provided to the Chemical Examiner, no evidentiary value can be given to Ext.P6 chemical analysis report.** **24. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the** **Crl.A No.1851/2006** -20- **sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated.** **25. 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. 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** ## **Crl.A No.1851/2006** -21- **definitely entitled to benefit of doubt arising from the absence of link evidence as discussed above.** **26. 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(i) of the Abkari Act. He is acquitted of the charges. The appellant/accused is set at liberty.** **This Crl.Appeal is allowed as above.** **Sd/-** **K. BABU JUDGE** **STK**