VIJAYAN S/O ISSAC v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 6[TH] DAY OF MARCH 2024 / 16TH PHALGUNA, 1945 ``` ``` CRL.A NO. 585 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 03.02.2007 IN SC NO.1536 OF 2001 OF ADDITIONAL SESSIONS COURT.-TRIAL OF ABKARI ACT ``` ## **`CASES,NEYYATTINKARA`** ## **`APPELLANT:`** ``` VIJAYAN S/O ISSAC MANCHAMKULAM,NADOORKOLLA DESOM,KOLLAYIL VILLAGE,, NEYYATTINKARA TALUK. ``` ``` BY ADV SRI.BLAZE K.JOSE ``` ## **`RESPONDENT:`** ``` STATE EXCISE INSPECTOR,AMARAVILA EXCISE RANGE,REP.BY, PUBLIC PROSECUTOR,HIGH COURT OF KERALA. ``` ## **`OTHER PRESENT:`** ## **`G SUDHEER,PP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 585 OF 2007 ``` ``` 2 ``` **==> picture [81 x 14] intentionally omitted <==** -------------------------------------- CRL.A.No.585 of 2007 --------------------------------------Dated this the 6[th] day of March, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 03.02.2007, passed by the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara, in Sessions Case No.1536/2001, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.07.1997, at about 6 p.m., the appellant was found in possession of 4 liters of arrack at Nadoor Kolla Desom, 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 58 of the Abkari Act before the jurisdictional magistrate. The case was committed to the Sessions Court, ``` CRL.A NO. 585 OF 2007 ``` ``` 3 ``` 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 58 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 5 and proved Exts.P1 to P7, MO. I. 5. After the closure of prosecution evidence, 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 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.Blaze K.Jose, the learned counsel appearing for the appellant/ accused and Sri.G Sudheer, the learned Public Prosecutor appearing for the respondent. ``` CRL.A NO. 585 OF 2007 ``` ``` 4 ``` 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- i) Exhibit P1 seizure mahazar does not contain the nature of the seal stated to have been affixed by the detecting officer on the can allegedly recovered from the possession of the accused. ii) Drawing of the sample by the property clerk of the Court as per the instructions of the learned Magistrate has no sanction of law. - iii) The Excise Guard who delivered the sample in the laboratory has not been examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 9. The alleged seizure was effected on 21.07.1997. The ``` CRL.A NO. 585 OF 2007 ``` ``` 5 ``` detecting officer had not drawn the sample at the place of occurrence. The Excise Officials produced the can containing the arrack before the Court on 22.07.1997. PW3, the Excise Inspector had prepared Exhibit P1 seizure mahazar. Ext.P1 does not contain the nature of the seal stated to have been affixed on the can containing the arrack. The specimen of the seal was also not produced before the Court. He has not given evidence as to the nature of the seal used. 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. The second challenge is on the way in which the sample was drawn by the property clerk. The property clerk gave evidence that she had drawn sample from the bulk quantity of arrack, as per the instructions of the learned Magistrate. There is nothing to show that the learned ``` CRL.A NO. 585 OF 2007 ``` ``` 6 ``` Magistrate instructed the property clerk to draw the sample. Even if it is assumed that the magistrate has given instructions, the act of drawing the sample by the property clerk has no sanction of law. This question was considered by this Court in Baburaj v. State of Kerala [2021 (6) KLT 416]. ## 12. In Baburaj v. State of Kerala this Court held thus:- “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 13. In Baburaj , this Court further held that as the procedure adopted in drawing the sample by the property clerk ``` CRL.A NO. 585 OF 2007 ``` ``` 7 ``` has no sanction of law, the genuineness of the sample forwarded to the Chemical Examiner's Laboratory is doubtful and therefore, no evidentiary value can be given to the Certificate of Chemical Analysis. 14. The third contention is that the Excise Guard who received the sample from the Court and delivered the same in the laboratory has not been examined by the prosecution to rule out the possibility of the sample being changed or tampered with. An Excise guard by name Sri.Retnakaran delivered the sample in the laboratory. He was not examined by the prosecution. Non-examination of this official who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 15. As the prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. ``` CRL.A NO. 585 OF 2007 ``` ``` 8 ``` 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. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- K. BABU JUDGE ## **`saap`**