Vijayan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 ``` ``` CRL.A NO. 701 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 13.03.2008 IN SC 382/2007 OF THE ADDITIONAL SESSIONS COURT, THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` VIJAYAN, S/O RAMANKUTTY, PANDIPLACKAL HOUSE, VELLIYANI BHAGAM, EDAMARUKU KARA, UDUMBANNOOR VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADV. SRI.B.RENJITH MARAR SRI.L.RAJESH NARAYAN IYER ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, IDUKKI, THROUGH THE, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SRI.RAJESH A. (SPL. GP) SMT.REKHA S., SR PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.701 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 701 of 2008 --------------------------------------------- Dated this the 14[th] day of October, 2022 **JUDGMENT** Aggrieved by the judgment dated 13.03.2008, passed by the Additional Sessions Court, Thodupzha in Sessions Case No.382 of 2007, the accused has preferred this appeal. The appellant/ accused 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 17.12.2006 at 2.15 p.m. the accused was found in possession of 1,200 litres of arrack carried in a cannas, at Idukki, 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 trial Court. On the appearance of the accused charge was framed against him for the offence punishable under ``` Crl.A.No.701 of 2008 ``` ``` 3 ``` 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 5 and proved Exts. P1 to P11 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, 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. Ext.D1 was marked on the side of the defence. 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. 6. Heard Sri. B.Renjith Marar, 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 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to ``` Crl.A.No.701 of 2008 ``` ``` 4 ``` ## analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (1) In Ext.P8, forwarding note/requisition for sending sample, the space meant for incorporating the name of the officer with whom the sample was forwarded to the Chemical Examiner’s Laboratory is left vacant and the learned Magistrate who counter signed the same did not mention the date on which he made his initials. (2) The prosecution has not given any explanation as to the custody of the sample during the interregnum from 19.12.2006 to 21.12.2006. 9. The alleged seizure was on 17.12.2006. The Detecting Officer (PW3), an Assistant Excise Inspector attached to the Excise Range Office, Idukki, seized the contraband substance from the possession of the accused. He had drawn sample in a bottle and forwarded the same to the Court. As per Ext.P7 property list prepared by the Excise Inspector, Excise Range Officer, Idukki, the sample was received in the Court by the Junior Superintendent on ``` Crl.A.No.701 of 2008 ``` ``` 5 ``` 18.12.2006. It remained in the custody of the property clerk till it was forwarded to the analysist. Ext.P8, the forwarding note/requisition for sending sample would show that the name of the official with whom the sample was forwarded to the laboratory is left vacant. Though the learned Magistrate counter signed Ext.P8, he has not mentioned the date on which he made his initials. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P11 would show that one Savichan Mathew, an Excise Guard delivered the bottle containing the sample in laboratory on 21.12.2006. Those officials who handled the sample during its transit from the Court to the laboratory were not examined as witnesses. 10. While considering a similar fact situation this Court in **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 ``` Crl.A.No.701 of 2008 ``` ``` 6 ``` 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 tamperproof 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.” 11. The non-examination of the officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution, as prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)]. 12. The learned counsel for the appellant/accused further ``` Crl.A.No.701 of 2008 ``` ``` 7 ``` brought to my notice that the prosecution has not given any explanation as to the custody of the sample during the interregnum from 19.12.2006 to 21.12.2006. Ext.P11 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory, as per letter dated 19.12.2006 of the Judicial First Class Magistrate-I, Thodupuzha. It is further seen that the sample reached the laboratory only on 21.12.2006. The prosecution has not given evidence as to the custody of the sample during this interregnum. Therefore, the prosecution failed to rule out the possibility of the sample being changed or tampered with in the course of its transit. The prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 13. 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. 14. 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 ``` Crl.A.No.701 of 2008 ``` ``` 8 ``` 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 (1) KHC 275]}. 15. 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. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK