Vijayan s/o Karuppan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 CRL.A NO. 2018 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 341/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT:`** ``` VIJAYAN,S/O KARUPPAN, KIDANGANADU, SULTHAN BATHERY,, WAYANAD DISTRICT. ``` ``` BY ADV S.M.PRASANTH ``` ## **`RESPONDENT:`** ``` THE STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SR PP SMT.REKHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2018 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 12.08.2008, passed by the Additional Sessions Court (Adhoc – II), Kalpetta in Sessions Case No.341/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 06.06.2005 at 6 pm, the accused was found in possession of four litres of arrack at Thavakkolly, Kidanganad 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 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 2018 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 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 6 and proved Exts. P1 to P7 and MO1. 5. After the 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 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 2018 OF 2008 ``` ..4.. 6. Heard Sri.S.M. Prasanth, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- - (i) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. - (ii) The Excise Officer who detected the offence was not empowered to effect detection. 8. The alleged seizure was effected on 06.06.2005 by a Preventive Officer of Excise Enforcement and Anti Narcotics Special Squad, Wayanad (PW1). After the seizure, he had prepared Ext.P2 seizure mahazar, which ``` CRL.A NO. 2018 OF 2008 ``` ..5.. does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. 9. In **Bhaskaran v. State of Kerala** (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. 10. Ext.P5 is the copy of the forwarding note prepared by the Excise Inspector, Sultan Bathery. Ext.P5 does not contain the name of the Excise official with whom the sample was forwarded to the Chemical Examiner’s Laboratory. The learned Magistrate who countersigned Ext.P5 has not mentioned the date on which he put his initials. This Court in **Kumaran v. State of Kerala** [2016(4) KLT 718], held thus:- ## **`CRL.A NO. 2018 OF 2008`** ..6.. “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 ``` CRL.A NO. 2018 OF 2008 ``` ..7.. 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.” 11. The prosecution has not given evidence as to date on which the sample was forwarded to the laboratory. Ext.P7, the Certificate of Chemical Analysis shows that as per letter dated 13.07.2005 of the Judicial First Class Magistrate-I, Sultan Batery, the sample was forwarded to the laboratory. Ext.P7 further shows that the sample reached the laboratory on only on 19.07.2005. The custody of the sample during the interrugnum from 13.07.2005 to 19.07.2005 has not been explained by the prosecution. The prosecution has not offered any explanation as to the delay in bringing the sample to the laboratory, after the same was obtained by the Excise offiicial concerned. ``` CRL.A NO. 2018 OF 2008 ``` ..8.. 12. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 13. In the absence of any satisfactory explanation as to the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. ``` CRL.A NO. 2018 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 14. In the present case, the property clerk of the Court and the Excise official by name Jiju who delivered the sample in the laboratory were not examined. The resultant conclusion is that the prosecution failed to establish the tamper proof despatch of the sample to the laboratory. 15. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 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 bulk quantity of the alleged contraband ``` CRL.A NO. 2018 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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 entitled to benefit of doubt arising from the absence of link evidence as discussed above. 18. 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. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged ; ``` CRL.A NO. 2018 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj