Wilson v. State of Kerala

## **aIN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 9[TH] DAY OF JULY 2021 / 18TH ASHADHA, 1943** **CRL.A NO. 241 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 739/2000 OF ADDITIONAL** **SESSIONS COURT (SPECIAL COURT FOR ABKARI ACT CASES),** ## **KOTTARAKKARA** ## **APPELLANT/S:** **WILSON, S/O. PAPPACHAN, JACOB VILASAM VEEDU, EDAMULAKKAL VILLAGE, PATHANAPURAM TALUK.** **BY ADV SRI.D.JAYACHANDRAN** ## **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 09.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **Crl.A No.241/2006** -2- **K.BABU, J. ========================= Crl.A No.241/2006 ========================== Dated this the 9[th] day of July, 2021** ## **JUDGMENT** **Aggrieved by the judgment dated 17.01.2006, passed by the learned Additional Sessions Judge (Abkari), Kottarakkara in S.C.No.739/2000, the accused has preferred this appeal.** **2. The trial court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act.** **3. The prosecution case is that on 14.10.97 at 7.30 p.m., the accused was found in possession of 5 litres of illicit arrack in a jerry can having a capacity of 10 litres, for sale, at Poovattoor, Padinjaru** ## **Crl.A No.241/2006** -3- **cherry, Kottarakkara.** **4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act, before the Judicial Magistrate of First Class-I, Kottarakkara. The case was committed to the Sessions Court, Kollam from where it was made over to the learned Additional Sessions Court (Abkari), Kottarakkara. On appearance of the accused charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.** **5. The evidence for the prosecution** ## **Crl.A No.241/2006** -4- **consists of the oral evidence of PWs 1 to 5 and Exts.P1 to P5 and MO1.** **6. 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 is evidence against the accused and 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 the offence punishable under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to** ## **Crl.A No.241/2006** -5- **undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/under Section 55(a) of the Abkari Act.** **7. Heard Sri.D.Jayachandran, the learned counsel appearing for the appellant/accused and Sri.M.S.Breez, the learned Senior Public Prosecutor appearing for the respondent.** **8. The learned counsel for the appellant/accused submitted that the** **prosecution failed to establish that the article said to have been seized from the possession of the accused ultimately reached the Chemical Examiner's laboratory.** **9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the** ## **Crl.A No.241/2006** -6- **accused.** **10. 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** **11. PW1, the Excise Circle Inspector, and PW2, the Excise Inspector, Excise Circle Office, Kottarakkara have jointly detected the offence. PWs1 and 2 have given evidence that on 14.10.1997, while they were on patrol duty, the accused was found carrying MO1 in front of the residence of one** **Sadanandan, Vrindavanam house, at Poovattoor** **Padinjaru cherry. The accused was intercepted by PWs1 and 2. The jerry can in the possession of the accused was seized by** ## **Crl.A No.241/2006** -7- **PW1 and found that it contained 5 liters of illicit arack. The accused was arrested from the spot. PW1 prepared Ext.P1 seizure mahazar. He sealed the can containing the illicit arrack.** **12. PWs3 and 4, the independent witnesses examined to prove the incident proper, did not support the prosecution case.** **13. PW5, the Excise Inspector, Kottarakkara conducted investigation and submitted the final report before the court on 13.03.2000.** **14. The learned counsel for the** **appellant/accused, submitted that the** **prosecution failed to establish that the contraband substance allegedly recovered** **from the place of occurrence eventually** ## **Crl.A No.241/2006** -8- **reached the Chemical Examiner's laboratory.** **15. The learned counsel has relied on the following circumstances to substantiate his contentions:** **i. The Detecting Officers, PWs1 and 2, have not given evidence as to the nature and description of the seal affixed on the can containing the contraband substance.** **ii. Ext.P1 seizure mahazar, the contemporaneous document evidencing** **seizure, is silent regarding the seal stated to have been affixed on MO1 can.** **iii. The copy of the forwarding note, which contains the specimen impression of** **the seal used, has not been tendered in evidence.** ## **Crl.A No.241/2006** -9- **iv. There is no evidence as to who has drawn the sample.** **v. The prosecution failed to establish the tamper-proof despatch of the sample bottle due to the non-examination of the Thondi Clerk or the excise official who received the sample bottle from the court for delivering the same to the chemical examiner's laboratory.** **vi. The specimen impression of the seal has not been produced and marked before the court.** **16. PWs1 and 2, the detecting** **officers, have not given evidence as to the nature and description of the seal affixed on the can containing illicit arrack allegedly seized from the possession of the** ## **Crl.A No.241/2006** -10- **accused. Ext.P1, the seizure mahazar, is silent regarding the specimen impression of the seal stated to have been affixed on MO1 can.** **17. Going by the evidence of PWs1 and 2, this Court finds that no sample was drawn from the place of occurrence. PW2, one of the detecting Officers, has given evidence that he had submitted a report to the court requesting to draw sample from MO1 can. PW1 has admitted that MO1 can contained 5 litres of illicit arrack. Ext.P5, certificate of chemical analysis, shows that a sealed bottle containing 150 ml of clear and colourless liquid alleged to be arrack was subjected to analysis in the Chemical Examiner's laboratory.** ## **Crl.A No.241/2006** -11- **18. This Court is kept in the dark as to who took the sample and on which date and how much quantity and also whether it was despatched in a tamper-proof condition. There is nothing on record to show that the specimen impression of the 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. In the absence of any evidence as to who took the sample and on which date and how much quantity, this Court finds it difficult to accept the case of the prosecution that the contraband substance examined at the Chemical Examiner's laboratory was one which was drawn from the jerry can containing illicit arrack** ## **Crl.A No.241/2006** -12- **allegedly recovered from the possession of the accused.** **19. 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 certificate of chemical analysis. While considering the lack of evidence regarding the forwarding note and the specimen impression of the seal, this Court in Ramachandran v. State of Kerala (2021(1) KLT 793) held thus:** **“Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached the** ## **Crl.A No.241/2006** -13- **hands of the chemical examiner by change of hands in a tamper-proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”** ## **20. In Rajamma v. State of Kerala (2014(1) KLT 506), this Court 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 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)** **21. It appears from Ext.P5 certificate of** **chemical analysis that as per letter dated 9.12.1997, Judicial First Class Magistrate** ## **Crl.A No.241/2006** -14- **Court-I, Kottarakkara has requested the Chemical Examiner, Government of Kerala to analyze the arrack contained in one sealed bottle containing 150 ml of clear and colourless liquid. The office copy of the covering letter of the learned Magistrate has not been marked in evidence. The Thondi Section Clerk was also not cited or examined as a witness. There is no evidence to show that the learned Magistrate had directed any official concerned to take a specified quantity of the contraband substance as sample. This means that some day between 15.10.97 and 9.12.97 somebody might have taken sample from the bulk quantity in court and might have despatched the same under the covering letter of the Magistrate. Yet** ## **Crl.A No.241/2006** -15- **another suspicious aspect is that MO1 can contained approximately 5 litres of arrack during the trial, the quantity originally seized from the accused. Hence, it cannot be conclusively held that the 'sample' was drawn from MO1 jerry can allegedly seized from the possession of the accused and it was the very same sample eventually reached the hands of the Chemical Examiner in a tamper-proof condition.** **22. It is well 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 contraband substance said to have been seized from the** **Crl.A No.241/2006** -16- **possession of the accused (vide: State of Rajasthan v. Daulat Ram [(1980) 3 SCC 303], Ravi v. State of Kerala & another (2011(3) KHC 121), Valsala v. State of Kerala (1993 KHC 798).** **23. In the instant case, the link evidence to connect the accused with the contraband substance is missing. 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 corelated. Hence the accused is entitled to benefit of doubt arising from the absence** **Crl.A No.241/2006** -17- **of link evidence as discussed above.** **24. 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 55(a) of the Abkari Act. The accusd is acquitted of the charge levelled against him. He is set at liberty.** **This Crl.Appeal is allowed as above.** **Sd/-** **K. BABU JUDGE** **STK**