Vinayan s/o Sreedharan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 29[TH] DAY OF JULY 2021 / 7TH SRAVANA, 1943** **CRL.A NO. 2864 OF 2008** **AGAINST THE JUDGMENT DATED 05.12.2008 IN SC.NO.364/2007 OF ADDITIONAL SESSIONS JUDGE, (FAST TRACK COURT-II -ADHOC,** ## **THRISSUR** ## **APPELLANT/ACCUSED** **VINAYAN S/O SREEDHARAN, CHOOLAKAL HOUSE, MATTATHOOR VILLAGE, MANKUTTIPADAM, THRISSUR DISTRICT.** ## **BY ADV SRI.NIREESH MATHEW** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REP. BY EXCISE INSPECTOR, EXCISE CIRCLE OFFICE, IRINJALAKKUDA, THRISSUR DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY SRI. M.S. BREEZ (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 2864 OF 2008** 2 ## **K. BABU J.** **-----------------------------------Crl.A.No.2864 of 2008** **------------------------------------** Dated this the 29[th] day of July, 2021 ## **J U D G M E N T** Challenge in this appeal is to the judgment dated 05.12.2008, passed by the learned Additional Sessions Judge, Fast Track Court-II-Adhoc, Thrissur in SC.No.364/2007. 2. By the impugned judgment the accused was convicted of the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 21.05.2005 at about 06.00 p.m., the accused was found in possession of 1.5 liters of illicit arrack in a 2.5 liter Can at Ompathungal Padam, Mattathoor Village, Thrissur District. The offence was detected by PW1, the Excise Preventive Officer, Excise Range Office, Irinjalakuda. 4. After completion of the investigation, final **CRL.A NO. 2864 OF 2008** 3 report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Chalakudy. 5. The case was committed to the Sessions Court, Thrissur, from where it was made over to the Trial Court. On 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 and therefore, he came to be tried by the trial court for the aforesaid offence. 6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 7, Exts.P1 to P11 and Mos. 1 and 2. 7. After 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 that there was evidence against the accused and **CRL.A NO. 2864 OF 2008** 4 hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The learned trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act. 8. Heard Sri. Nireesh Mathew, the learned counsel appearing for the appellant/accused and Sri. M.S. Breez, the learned Senior Public Prosecutor appearing for the respondent. 9. The learned counsel for the appellant/accused canvassed the following grounds to challenge the judgment of conviction and sentence: (a) The prosecution failed to establish the identity of the person, who was allegedly possessing the contraband substance at the **CRL.A NO. 2864 OF 2008** 5 scene of occurrence. (b) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 10. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. 11. The only point that arises for consideration is whether the conviction entered and the sentence passed against the appellant/accused are sustainable or not. ## **THE POINT** 12. PW1 has given evidence that on 21.05.2005 at about 06.00 p.m., the accused was found in possession of 1.5 liters of illicit arrack in a plastic Can at Ompathungal Padam, Mattathoor Village, Thrissur District. PW1 seized the contraband substance from the possession of the accused. He collected 200 ml of arrack from the **CRL.A NO. 2864 OF 2008** 6 Can in the possession of the accused in a 375 ml bottle and sealed the same. The accused was arrested by PW1. PW2, an Excise Guard who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. 13. Pws.3 and 4, the independent witnesses, did not support the prosecution case. PW5, the Excise Inspector, Excise Range Office, Irinjalakuda, registered the crime against the accused. PW6 conducted part of the investigation. PW7 completed investigation and submitted final report before the Court. 14. Learned counsel for the appellant submitted that prosecution failed to establish the identity of the person who was in possession of the contraband substance at the place of occurrence. According to the prosecution, on seeing the Excise party led by PW1 the accused ran away from the scene, leaving the contraband substance at the place of occurrence. PWs 1 and 2, the official witnesses have no case that they had any previous **CRL.A NO. 2864 OF 2008** 7 acquaintance with the accused. They have claimed that they had seen the accused from a distance of about 200 meters. Going by their evidence, PW1 and PW2 had only a fleeting glimpse of the person who ran way from the scene. In the instant case, the prosecution has no case that the witnesses who identified the appellant had any opportunity to see him after the incident. They identified him in the court in October, 2008, after a long lapse of three years. 15. 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 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) SC **CRL.A NO. 2864 OF 2008** 8 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]. 16. This Court, hence, comes to the conclusion that prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the place of occurrence. 17. The learned counsel for the appellant/accused further contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis at the Chemical Examiner's laboratory. 18. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions: (a) The specimen impression of the seal affixed on the bottle containing the sample has not been **CRL.A NO. 2864 OF 2008** 9 forwarded to the Chemical Examiner's laboratory. - (b) There is no evidence before the court as to the official with whom the sample was forwarded to the Chemical Examiner's laboratory. - (c) The prosecution failed to examine the officials who handled the sample during the different stages so as to rule out the tampering of the sample. - (d) Prosecution has not offered any satisfactorily explanation for the delay in the analysis of the sample at the Chemical Examiner's laboratory. 19. The learned counsel for the appellant/accused contended that there is no evidence to convince the court that the specimen impression of the seal had been forwarded to the Chemical Examiner's laboratory. 20. Ext.P7, copy of the forwarding note, contains the official seal of the Judicial First Class Magistrate Court-Chalakudy against the space meant for sample seal. There is no evidence to show that the specimen impression **CRL.A NO. 2864 OF 2008** 10 of the seal stated to have been affixed on the bottle containing the sample, had been forwarded to the Chemical Examiner's laboratory for verification. 21. Ext.P11, certificate of Chemical analysis, contains a certification to the effect that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any evidence to show, the production of the specimen impression of the seal affixed on the bottle containing the sample before the court and forwarding of the same to the Chemical Examiner's laboratory, the above referred certification by the Chemical Examiner in Ext.P11 cannot be accepted. 22. While considering a fact situation in which the prosecution failed to establish that the specimen impression of the seal was produced before the court and forwarded to the Chemical Examiner, this Court in **Rajamma** ## **v. State of Kerala** [2014 (1) KLT 506], held thus: “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 **CRL.A NO. 2864 OF 2008** 11 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”. 23. Ext.P7, copy of the forwarding note, is also silent regarding the name of the person with whom the sample was sent for analysis. The date on which the sample was forwarded to the Chemical Examiner is also not mentioned in Ext.P7. The learned Magistrate who countersigned on Ext.P7 also omitted to mention the date on which he affixed his signature. It is not discernible as to why the space meant for writing the name of the person with whom the sample was sent to the Chemical Examiner's laboratory remained unfilled. Ext.P11, certificate of chemical analysis, shows that the sample reached the laboratory on 21.06.2005. But the same was **CRL.A NO. 2864 OF 2008** 12 subjected to analysis only on 29.09.2006. 24. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 25. In the instant case, the long delay in the analysis of the sample remains unexplained. 26. The learned counsel for the appellant/accused further contended that the non examination of the officials who handled the sample during different stages is fatal to the prosecution. The properties, including the sample, were originally entrusted to PW5. Ext.P6 report shows that the properties, including the sample, **CRL.A NO. 2864 OF 2008** 13 were forwarded to the court through Shri.V.A. Ummer, the Excise Guard, Excise Range Office, Irinjalakkuda. Ext.P5 would show that the sample was received by the official concerned of the court. This court is in the dark as to who received the sample from the court and on which date for delivering the same to the Chemical Examiner's laboratory. The sample was delivered to the Chemical Examiner's laboratory by an Excise Guard by name T.K.Santhosh. 27. It is the admitted case of the prosecution that the sample changed several hands before it reached the Chemical Examiner's laboratory. None of these witnesses were examined by the prosecution to prove that while in their custody the seal was not tampered with. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period-a fact which had to be proved affirmatively by the prosecution. (vide: **State of Rajasthan v. Daulat Ram** **CRL.A NO. 2864 OF 2008** 14 [(1980) 3) SCC 303]). 28. In view of the above discussed infirmities, no evidentiary value can be attached to Ext.P11, certificate of Chemical analysis. 29. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of the 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. 30. 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 contraband substance said to have been seized from the possession of the accused. (vide: **State of Rajasthan v. Daulat Ram** [(1980) 3 SCC 303] **, Sathi v. State of Kerala** [2007 (1) KHC 778] **, Sasidharan v. State of Kerala** [2007 (1) KLT 720]). 31. In the instant case, the prosecution was unable **CRL.A NO. 2864 OF 2008** 15 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. 32. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge levelled against him. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS