Vijayarajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **WEDNESDAY, THE 15TH DAY OF JULY 2020 / 24TH ASHADHA, 1942** ## **CRL.A.No.364 OF 2007** **AGAINST THE JUDGMENT IN SC 50/2004 DATED 06-02-2007 OF ADDITIONAL SESSIONS COURT (ADHOC-I), PATHANAMTHITTA** ## **APPELLANT/ACCUSED IN S.C. NO.50/2004:** **VIJAYARAJAN AGED 40 YEARS S/O.VASUDEVAN NAIR, KOYATHU VEEDU,, MALAYALAPUZHA THAZHAM KARA, MALAYALAPUZHA VILLAGE,, KOZHENCHERY TALUK, PATHANAMTHITTA.** **BY ADVS. SRI.K.V.ANIL KUMAR SMT.SWAPNA VIJAYAN** ## **RESPONDENT/COMPLAINANT IN S.C.NO.50/2004:** **STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **SRI SANTHOSH PETER SR PP** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 13-072020, THE COURT ON 15-07-2020 DELIVERED THE FOLLOWING:** **CRL.A.No.364 OF 2007** **2** ## **R. NARAYANA PISHARADI, J** **-----------------** ----------------------------------- **Crl.A. No. 364 of 2007** ----------------------------------------------------Dated this the 15[th] day of July, 2020 ## **JUDGMENT** The appellant is the accused in the case S.C No.50/2004 on the file of the Court of the Additional Sessions Judge, Pathanamthitta. 2. The prosecution case is that, on 13.07.2002, at about 17:30 hours, at the road in front of the house of one Sivaraman Nair in Malayalapuzha Village, PW1 Excise Inspector found the appellant/accused having in his possession a can containing five litres of arrack. 3. The trial court framed charge against the accused for the offence punishable under Section 8(1) read with 8(2) of the Abkari Act. The appellant/accused pleaded not guilty to the offence and he claimed to be tried. 4. The prosecution examined PW1 to PW6 and marked Exts.P1 to P6 documents and material object MO1. DW1 and DW2 were examined on the side of the accused. 5. The trial court found the appellant/accused guilty of the offence punishable under Section 8(1) read with 8(2) of the Abkari Act **CRL.A.No.364 OF 2007** **3** and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. 6. Aggrieved by the order of conviction and sentence passed against him by the trial court, the accused has filed this appeal. 7. Heard Adv.Smt.Swapna Vijayan, who appeared for the appellant and also the learned Public Prosecutor. Perused the records. 8. The prosecution examined six witnesses. PW1 is the Excise Inspector who detected the offence. PW2 and PW3 are the independent witnesses examined by the prosecution to prove the occurrence. PW4 is the Excise Inspector who conducted the investigation of the case. PW5 is an excise guard who was in the excise party led by PW1. PW6 is the Preventive Officer who was in charge of the Excise Inspector of Konni Excise Range before whom PW1 had produced the accused and the articles and the records of the case. 9. PW1 Excise Inspector has given evidence regarding the occurrence in detail. The evidence of PW5 corroborates the testimony of PW1 with regard to the material particulars of the occurrence. 10. PW2 and PW3, the independent witnesses examined by the **CRL.A.No.364 OF 2007** **4** prosecution, did not support the prosecution case. They denied having seen the incident. They even denied the signature in Ext.P1 seizure mahazar. 11. Ext.P6 is the chemical analysis report received in respect of the sample which was forwarded for analysis. It shows that the sample of liquid forwarded for analysis contained 27.60% by volume of ethyl alcohol. 12. The plea of the accused, during the trial of the case, was that the excise party summoned him from his house and took him into custody and a false case was registered against him by using a can purchased from a shop. DW1 and DW2 were examined by the accused to prove this plea. 13. The evidence of DW1 does not establish that the accused was summoned from his house by the excise party. His evidence is that, on the date of the alleged occurrence, the excise party had asked him whether he had seen the accused. 14. DW2 is the owner of the shop from which the excise party had allegedly purchased the can. He has given evidence that the excise officers had purchased a can from his shop. He did not identify MO1 in the court as the can purchased by the excise party from his shop. DW2 has also given evidence that he saw the excise party **CRL.A.No.364 OF 2007** **5** taking the accused in the jeep. His evidence is not at all sufficient to prove that the accused was falsely implicated in the case by the excise officers by using the can purchased from his shop. 15. The accused has no plea that PW1 or any other excise officer had any motive to implicate him in a serious case of this nature. There is nothing to show that the excise officers had foisted a false case on the accused with a view to settle any personal score with him. 16. However, the accused is entitled to get an order of acquittal on other grounds. 17. PW1 has given evidence that he seized the can containing arrack from the possession of the accused and took sample of liquid from the can. However, he did not categorically state before the court that seal was affixed by him on the bottle containing the sample or the can containing the residue. Of course, Ext.P1 seizure mahazar contains a recital that the bottle containing the sample and the can containing the residue of liquid were sealed at the spot of the occurrence. But, the recital in Ext.P1 mahazar to that effect can only be used to corroborate the statement of PW1, if any made in that regard, in the court. In the absence of any evidence given by PW1 in the court that he sealed the sample bottle or the can, the recital to **CRL.A.No.364 OF 2007** **6** that effect in Ext.P1 mahazar is of no use. 18. Of course, there is evidence to the effect that PW1 had produced the specimen of the seal in the court. Ext.P3 document contains the samples of the seal thus provided by PW1. But, PW1 has not given any evidence regarding the nature of the seal used by him. The specimen of the seal is not affixed on Ext.P1 mahazar also. There is also no recital in Ext.P1 mahazar with regard to the nature of the seal used by PW1 for sealing the sample bottle or the can. In short, there is total absence of evidence that PW1 had sealed the bottle containing the samples and the can with the seal, the specimen of which is given in Ext.P3 document. In such circumstances, production of the sample of the seal by PW1 before the court does not serve any useful purpose. 19. There is also another lacuna in the prosecution evidence. The forwarding note prepared by the investigating officer for sending the sample for chemical examination was not marked in the case. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottle containing the sample. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of the occurrence had reached the chemical **CRL.A.No.364 OF 2007** **7** examiner for analysis in a tamper proof condition (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :** ## **2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). 20. In the absence of the forwarding note marked in evidence and in the absence of any evidence given by PW1 that he sealed the sample bottle or the can at the spot of the occurrence, there is no assurance that the very same sample of liquid allegedly drawn by PW1 at the spot of the occurrence was produced before the court and forwarded for chemical analysis. It follows that, there is no assurance that the very same sample allegedly drawn from the can containing the liquid seized from the possession of the accused was tested in the laboratory and that Ext.P6 chemical examination report relates to that sample itself. 21. In **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569** , the Supreme Court has held as follows: "The failure of the prosecution in the present case to relate the seized sample with that seized from the appellant makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of a laboratory report that the sample tested was narcotics cannot be conclusive proof by itself. The sample seized and that **CRL.A.No.364 OF 2007** **8** tested have to be co-related". 22. Proof of mere seizure of any liquid from the possession of a person is not sufficient to establish that he had committed an offence punishable under Section 55(a) or under Section 8(1) read with 8(2) of the Abkari Act. The prosecution has to further establish that the liquid seized was arrack or any other contraband liquor. When the prosecution relies upon report of chemical analysis in respect of the sample sent for analysis to prove so, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the sample taken from the liquid seized. A conviction cannot be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed by the chemical examiner was the very same sample drawn from the liquid seized from the possession of the accused. 23. The trial court has not taken into consideration the aforesaid vital aspects while appreciating the prosecution evidence. In such circumstances, the conviction entered against the appellant/accused cannot be sustained. 24. Consequently, the appeal is allowed. The order of conviction and sentence passed against the appellant/accused by the trial court under Section 8(1) read with 8(2) of the Abkari Act is set aside. The **CRL.A.No.364 OF 2007** **9** appellant/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. **Sd/-R. NARAYANA PISHARADI JUDGE** **lsn**