Vimalakumary @ Kumary d/o Rajamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 7[TH] DAY OF JULY 2021 / 16TH ASHADHA, 1943 CRL.A NO. 1766 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 943/2006 OF ADDITIONAL** **SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES), KOTTARAKKARA, KOLLAM** ## **APPELLANT/S:** **VIMALAKUMARY @ KUMARY D/O. RAJAMMA, PARAVILA VEEDU,, OTTAKKAL MURI, THENMALA VILLAGE, KOLLAM DISTRICT.** **BY ADVS. SRI.PAULY MATHEW MURICKEN SRI.JE VARGHESE FRANCIS** ## **RESPONDENT/S:** **STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** ## **OTHER PRESENT:** **SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Crl.A No.1766/2006** -2- ## **K.BABU, J. ========================= Crl.A No.1766/2006 ==========================** ## **Dated this the 7[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated 23.08.2006, passed by the learned Additional Sessions Judge (Abkari), Kottarakkara, in S.C.No.943/2006, the accused has preferred this appeal.** **2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act.** **3. The prosecution case is that on 18.11.2005 at 7.20 p.m., the accused was found in possession of 1.750 ml of illicit arrack for sale in two bottles.** ## **Crl.A No.1766/2006** -3- **4. After completion of the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, before the Judicial Magistrate of First Class-I, Punalur. The case was committed to the Sessions Court, Kollam from where it was made over to the Additional Sessions Court (Abkari), Kottarakkara. 5. On appearance of the accused charges were framed against her for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty and therefore, she came to be tried by the learned Additional Sessions Judge for** **Crl.A No.1766/2006** -4- ## **the aforesaid offences.** **6. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P6 and MOs1 to 3.** **7. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C was recorded. She 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 she was called upon to enter on her defence and to adduce evidence, if any, she may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offences** **Crl.A No.1766/2006** -5- **under Sections 55(a) and 55(i) of the Abkari Act and she was convicted thereunder. She was sentenced to undergo simple imprisonment** **for a term of one year each, and to pay a fine of Rs.1,00,000/- each, under Sections 55(a) and 55(i) of the Abkari Act.** **8. Heard Sri.Pauly Mathew Muricken, the learned counsel appearing for the appellant and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent.** **9. The learned counsel for the appellant canvassed the following grounds to challenge the impugned judgment:** **a) The delay in producing the properties before the court has not been properly explained.** ## **Crl.A No.1766/2006** -6- **b) The prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the scene of occurrence. c) The prosecution has not succeeded in establishing that the articles said to have been seized from the place of occurrence ultimately reached the hands of the Public Analyst at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charges against the accused.** **Crl.A No.1766/2006** -7- **11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.** **THE POINT** **12. PW4, the Sub Inspector of Police, Thenmala, detected the offence. PW4 gave evidence that on 18.11.2005 in the evening, while he was on patrol duty, along with PW3 and other police constables, the accused was found engaged in the sale of illicit arrack near the residence of one Mr.Rajan, Saranya Bhavan at Ottakkal. PW4 further stated that on seeing the police party, the accused ran away from the scene of occurrence after leaving the contraband articles. According** **Crl.A No.1766/2006** -8- **to PW4, he had previous acquaintance with the accused and he could identify her. PWs1 and 2, the independent witnesses, did not support the prosecution case. PW3, the Police Constable who had accompanied PW4 supported his version. PW4 conducted investigation and submitted final report.** **13. The learned counsel for the appellant contended that the delay in producing the articles allegedly seized from the place of occurrence has not been satisfactorily explained. The alleged seizure was on 18.11.2005. Ext.P3, the list of properties sent to the Magistrate, shows that the properties were produced before the court** **Crl.A No.1766/2006** -9- **only on 21.11.2005. PW4 also admitted that the properties could be produced only on 21.11.2005. He explained that on 19.11.2005, he had produced the properties before the court, but the same were not received. But no convincing material has been produced in the court to show that the properties were produced in the court on 19.11.2005. The further explanation of PW4 is, that the properties were in his safe custody till they were produced before the court on 21.11.2005, which is no way a satisfactory explanation for the delay in production of properties.** **14. On the question of delay in production of the properties, the Division** **Crl.A No.1766/2006** -10- **Bench of this Court in Ravi v. State of Kerala & another (2011(3) KHC 121) held thus:** **“8. We therefore, answer the reference as follows:** **(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)** **15. 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** ## **Crl.A No.1766/2006** -11- **the property. In the instant case I have no hesitation to hold that there was 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.** **16. The learned counsel for the appellant further contended that the prosecution failed to establish the identify of the person, who was allegedly possessing the contraband substance at the scene of occurrence. The time of occurrence is 7.20** **p.m. The official witnesses, who supported the prosecution, gave evidence that they had seen the accused from a distance of** **Crl.A No.1766/2006** -12- **about 20 meters. PW3, the police constable who had accompanied the detecting officer, has no case that he had any previous acquaintance with the accused. PW4, while giving evidence, stated that he had previous acquaintance with the accused. Both of them deposed that they had no opportunity to see the accused after the incident. Both of them identified the accused before the court approximately after one year.** **17. In Ext.P1 seizure mahazar, PW4 had not stated that he had any previous acquaintance with the accused. On the other hand PW4 has specifically stated in Ext.P1 mahazar, the contemporaneous document evidencing seizure, that he verified the** **Crl.A No.1766/2006** -13- **identity of the person who was in possession of the contraband substance at the scene of occurrence from others. The credibility of the version of PW4 that he had previous acquaintance with the accused is doubtful. Hence, the evidence given by PW4 to the effect that he had previous acquaintance with the accused is not acceptable. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during the trial. Where a witness identifies an accused, who is not known to him in the court, for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his** **Crl.A No.1766/2006** -14- **power of observation (vide Jameel v. State of Maharashtra [AIR 2007 (SC) 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], Kanan and Others v. State of Kerala [AIR 1979 (sSC) 1127], State (Delhi Administration) v. V.C. Shukla and another [AIR 1980 (SC) 1382], Mohanlal Gangaram Gehani v. State of Maharashtra [AIR 1982 (SC) 839], Mohd. Abdul Hafeez v. State of AP [AIR 1983 (SC) 367].** **18. In the instant case, the official witnesses never had an opportunity to see the accused after the incident. The incident** **Crl.A No.1766/2006** -15- **occurred at 7.20 p.m. Since the official witnesses including PW4 had only a feeting glimpse of the person who ran away from the scene, even if the evidence of PW4 that he had previous acquaintance with the accused is accepted, the possibility that he committed some mistake in identifying the accused cannot be ruled out. This is more so when PW4 failed to give any identifying features of the person who ran away from the scene, in Ext.P1 seizure mahazar or in any of the contemporaneous documents. The resultant conclusion is that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband** **Crl.A No.1766/2006** -16- **substance at the relevant time.** **19. The learned counsel for the accused further contended that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence ultimately reached the chemical examiner's laboratory for the following reasons:** **i. PW4, the detecting Officer and PW3, who had accompanied him, have not given evidence as to the nature and description of the seal affixed on the sample bottle.** **ii. Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, does not contain any narration as to the nature and description of the** **Crl.A No.1766/2006** -17- **seal used.** **iii. Ext.P4, copy of forwarding note, does not contain the specimen impression of the seal and the name of the official who received the sample bottle from the court for delivering the same to the chemical examiner's laboratory.** **20. I have gone through the** **depositions of the official witnesses and Ext.P1 mahazar. PW4, the detecting officer** **and the other official witness who had accompanied him had not given evidence as to the nature and description of the seal affixed on the bottle containing sample. Ext.P1 seizure mahazar does not contain the specimen of the seal stated to have been** **Crl.A No.1766/2006** -18- **affixed on the bottle containing the sample.** **21. 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 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** ## **Crl.A No.1766/2006** -19- **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)** ## **22. 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** ## **Crl.A No.1766/2006** -20- **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 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)** **23. The learned counsel further contended** **that there is nothing to show that specimen seal was provided to the chemical examiner for verification and to ensure that the sample seal so provided was tallied with the seal affixed on the sample bottle. There is absolutely no evidence as to the** **Crl.A No.1766/2006** -21- **nature and description of the seal affixed on the bottle stated to have been used by the detecting officer and that the same has been provided to the Chemical Examiner. Ext.P4, the copy of the forwarding note, is silent with regard to the name of the person with whom the sample bottle was sent for analysis. There is no explanation as to why the space meant for writing the name of the official with whom the sample was sent remained unfilled. In Ext.P4 the learned Magistrate has failed to write the date on which he affixed his signature.** **24. In Kumaran v. State of Kerala [2016(4) KLT 718], this Court, while dealing with a similar fact situation,** **Crl.A No.1766/2006** -22- ## **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 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** **Crl.A No.1766/2006** -23- **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 sample to the laboratory and consequently, the tamperproof 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.”** **25. In the instant case, it was** **imperative for the prosecution to examine the Thondi Clerk of the court or the official who had received the sample bottle to be delivered to the chemical examiner's laboratory to establish the tamper-proof despatch of the sample to the laboratory.** **26. In Rajamma v. State of Kerala (2014(1) KLT 506), this Court held thus:** ## **Crl.A No.1766/2006** -24- **“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”. (Emphasis supplied)** **27. In the instant case, the prosecution failed to prove that any specimen impression of the seal was provided to the Chemical** **Crl.A No.1766/2006** -25- **Examiner for verification. 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. 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.** **28. It is well settled that the prosecution in a case of this nature can succeed only if it is proved that the sample** **Crl.A No.1766/2006** -26- **which was analysed in the chemical examiner's laboratory was the very same sample which was drawn from the 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 evidence 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.** **29. The learned Additional Sessions Judge ignored these vital aspects of the matter. Therefore, the conviction entered and the sentence passed by the court below cannot be** **Crl.A No.1766/2006** -27- **sustained. The appellant/accused is** **therefore not guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act and she is acquitted of the charges. The appellant is set at liberty. This Crl.Appeal is allowed as above.** **Sd/-** **K. BABU JUDGE** **STK**