Vijayan s/o Gopalan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **CRL.A NO. 1912 OF 2007** **AGAINST THE JUDGMENT IN SC 405/2001 OF THE ADDITIONAL** **SESSIONS JUDGE, (ABKARI CASES), KOTTARAKKARA** **APPELLANT/ACCUSED:** **VIJAYAN S/O. GOPALAN, ASSARIZHIKATHU VEEDU, MEEYANA MURI, VELINALLOOR VILLAGE.** BY ADVS. SAJJU.S B.BALRAJ K.SHAJ **RESPONDENT:** **STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** BY SR.PUBLIC PROSECUTOR SRI.M.S.BREEZ **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1912 of 2007 2 ## **K.BABU, J.** **========================= Crl.A No.1912 of 2007** **==========================** Dated this the 5[th] day of July, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 10.9.2007, passed by the learned Additional Sessions Judge (Abkari Cases), Kottarakkara, in S.C.No.405/2001, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 2.4.2000 at 12.45 pm, the accused was found in possession of 100 bottles of foreign liquor, containing 375 ml each, at Asarazhikathu Veedu, bearing No.XI/466, at Ambalamkunnu in Velinalloor Village. 3. After completion of the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and (i) of the Abkari Act before the Judicial First Class Magistrate Court II, Kottarakkara. The case Crl.A No.1912 of 2007 3 was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Judge (Abkari Cases), Kottarakkara. On appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and marked Exts.P1 to P5 and MO1 to MO6 to prove the case against the accused. 5. 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 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 offence under Section 55(a) of the Abkari Act and he was convicted thereunder. 6. Heard Sri.Sajju.S, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Crl.A No.1912 of 2007 4 Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment: a) There is inordinate delay in producing the properties before the court. b) The prosecution failed to establish that the articles said to have been seized from the place of occurrence eventually reached the hands of the Public Analyst at the Chemical Examiner's lab. c) The prosecution failed to establish that the accused was in conscious possession of the contraband substances. d) The prosecution failed to establish the identity of the person who was in possession of the contraband substances. 8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case. 9. The only point that arises for consideration is whether the conviction entered and the sentence passed Crl.A No.1912 of 2007 5 against the accused are sustainable or not. ## THE POINT 10. PW4, the Sub Inspector of Police, Pooyappally Police Station, detected the offence. On 2.4.2000 he searched the residence of the accused and recovered the contraband substances. PW4 gave evidence that he prepared Ext.P1 seizure mahazar, evidencing the seizure of contraband substances and collected samples in four bottles and sealed them. PW4 registered Ext.P3 FIR on the basis of Ext.P1 seizure mahazar. PW4 further stated that the remaining bottles were kept in a box and the same was also sealed. PW3, the Police Constable, who had accompanied PW4, gave evidence in support of the version of PW4. PWs 1 and 2, the independent witnesses, did not support the prosecution case. 11. The learned counsel for the appellant submitted that there is inordinate delay in producing the articles allegedly seized from the place of occurrence. Ext.P4 shows that the articles allegedly recovered from the possession of the accused were produced before the court only on 19.4.2000. PW4, the detecting officer, has not given any explanation as to the delayed production of the articles before the court. 12. On the question of delay in production of the Crl.A No.1912 of 2007 6 properties, the Division Bench of this Court in **Ravi v. State of Kerala & another (2011(3) KHC 121)** held thus: “8(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) 13. 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. 14. The learned counsel for the appellant further contended that the prosecution failed to establish that the contraband allegedly recovered from the residence of the accused ultimately reached the hands of public analyst. He Crl.A No.1912 of 2007 7 relied on the following aspects to substantiate his contentions. a) The nature and description of the seal affixed by PW4 on the sample bottle has not been narrated in Ext.P1 mahazar. b) He has also not given any evidence regarding the nature and description of the seal affixed on the sample bottles. c) The copy of the forwarding note containing the specimen of the seal has not been produced before the court. d) The specimen of the seal affixed on the sample bottle has not been produced before the court. 15. Ext.P1 seizure mahazar does not contain the narration of the nature and description of the seal used by the detecting officer. He has also not given any evidence as to the nature and description of the seal, he affixed on the sample bottle. 16. 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 Crl.A No.1912 of 2007 8 ## the nature of the seal, this Court held thus: “21. 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. 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 hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)” (Emphasis supplied) ## 17. 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 Crl.A No.1912 of 2007 9 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) 18. There is absolutely no evidence as to the nature and description of the seal stated to have been affixed on the bottle. There is also no evidence to show that the specimen of the seal has been provided to the Chemical Examiner. The copy of the forwarding note, which contains the specimen of the seal affixed and the name of the official with whom the sample bottle was entrusted for delivering the same to the laboratory has not been produced and marked in this case. 19. In **Ramachandran v. State of Kerala (2021(1)** **KLT 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 Crl.A No.1912 of 2007 10 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.” ## 20. 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 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”. 21. 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.P5 chemical analysis report. 22. In **Vijay Pandey v. State of U.P (AIR 2019 SC 3569),** the Apex Court held that mere production of the Crl.A No.1912 of 2007 11 laboratory report that the sample tested was contraband substance cannot be conclusive by itself. The sample seized and that tested have to be co-related. 23. 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 definitely entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 24. The learned counsel for the appellant further contended that the prosecution failed to establish the fact that the residential building from where the articles were recovered belonged to the appellant/accused. There is absolutely no evidence to show that the building from where the alleged seizure was effected remained in the possession of the accused. Crl.A No.1912 of 2007 12 25. The resultant conclusion is that the prosecution failed to establish the conscious possession of the contraband substance by the accused. 26. PW4 has given evidence that he was unaware of the other members of the residential building from where the articles were recovered. He admitted that he had not verified the voters list or ration card to ascertain the persons who were residing there. PW4 has no case that he had any previous acquaintance with the accused. PW4, the detecting officer, and the officers accompanied him had not seen the accused at the place of occurrence. 27. Resultantly, this Court comes to the conclusion that the prosecution failed to establish the conscious possession of the contraband substance by the accused. 28. The learned counsel for the appellant further submitted that the prosecution failed to establish the identity of the person who was in possession of contraband articles. It is pertinent to note that the prosecution failed to produce any acceptable evidence to connect the accused with the contraband substances. PW4 has not given evidence as to the presence of the accused in the residential building from where Crl.A No.1912 of 2007 13 the contraband articles were recovered. 29. The upshot of the above discussion is that the prosecution failed to establish any material to connect the accused with the contraband articles. The conviction entered and sentence passed by the learned Additional Sessions Judge, ignoring these vital aspects, cannot be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge under Section 55(a) of the Abkari Act. The appellant/accused is set at liberty. The Crl.Appeal is allowed as above. **Sd/-** **K. BABU JUDGE** ab