Kerala High Court
Bhaskaran Pokku vs State Of Kerala on 27 July, 2021
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 27TH DAY OF JULY 2021 / 5TH SRAVANA, 1943
CRL.A NO. 2961 OF 2008
AGAINST THE JUDGMENT DATED 24.11.2008 IN SC 121/2004 OF THE
ADDITIONAL SESSIONS JUDGE, (ADHOC)-III, THALASSERY, KANNUR
APPELLANT/ACCUSED:
BHASKARAN POKKU
S/O.NAADAN, MANGADAN HOUSE, KOLAYAD AMSOM,
KOMMERI DESOM, KANNUR DISTRICT.
BY ADVS.
SRI.JIJO JOSEPH
SRI.RAJESH THOMAS
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY 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
27.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 2961 OF 2008
2
K. BABU J.
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Crl.A.No.2961 of 2008
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Dated this the 27th day of July, 2021
J U D G M E N T
Challenge in this appeal is to the judgment dated 24.11.2008, passed by the learned Additional Sessions Judge, (Adhoc-III), Thalassery, in SC.No.121/2004.
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 09.11.2002 at about 18.30 hours, the accused was found in possession of 3 liters of country made arrack at Nedumpoyil in Kolayad Amsom. The offence was detected by the SI of Police, Peravoor.
4. After completion of the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before CRL.A NO. 2961 OF 2008 3 the Judicial First Class Magistrate Court, Kuthuparamba.
5. The case was committed to the Sessions Court, Thalassery, 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 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.
6. The evidence for the prosecution consists of the oral evidence of PWs 1 to 4 and Exts.P1 to P8 and MO.1.
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 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 CRL.A NO. 2961 OF 2008 4 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 one year and to pay a fine of Rs.1,00,000/- under Section 8(2) of the Abkari Act.
8. Heard Sri.Jijo Joseph, 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 inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution.
(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 CRL.A NO. 2961 OF 2008 5 Chemical Examiner's laboratory.
10. The learned Senior 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 accused are sustainable or not. THE POINT
12. PW1, the SI of Police, Peravoor Police Station, on 09.11.2002, found the accused carrying a 5 liter black Can at Kolayad. PW1 intercepted the accused and inspected the liquid contained in the Can and found that it contained 3 liters of illicit arrack. PW1 seized the contraband substance found in the possession of the accused, as per Ext.P3 Seizure Mahazar. He collected 750 ml of arrack in 2 bottles (375 ml each) as sample and sealed the same. He registered Ext.P4 FIR against the accused.
13. PWs 2 and 3, the independent witnesses, did not CRL.A NO. 2961 OF 2008 6 support the prosecution case. PW4, the SI of Police, Kelakam Police Station, conducted investigation. Final report was submitted by the SI of Police Peravoor.
14. The learned counsel for the appellant/accused contended that the inordinate delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. PW1, the SI of Police, Peravoor Police Station, admitted that the properties including the sample were produced before the court only on 25.11.2002 due to pressure of work. Ext.P5, the list of properties, sent to the Magistrate would also show that the properties including the sample were produced before the court only on 25.11.2002. The explanation offered by PW1, the detecting officer, is no way satisfactory.
15. On the question of delay in the production of the properties, the Division Bench of this Court in Ravi v. State of Kerala & another [2011 (3) KHC 121] held thus:
CRL.A NO. 2961 OF 2008 7 "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)
16. 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 the property. In the instant case there is 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.
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 possession of the accused ultimately reached the Chemical Examiner's laboratory. CRL.A NO. 2961 OF 2008 8
18. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions:
(a) The inordinate delay in the production of properties before the court has not been satisfactorily explained.
(b) PW1, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottles containing the sample.
(c) Ext.P3, seizure mahazar, is silent regarding the nature and description of the seal said to have been used.
(d) There is no evidence to show that the specimen impression of the seal had been produced before the court and forwarded to the Chemical Examiner's laboratory.
19. The oral evidence of PW1, the detecting officer, is silent regarding the nature and description CRL.A NO. 2961 OF 2008 9 of the seal affixed on the bottles containing the sample. Ext.P3, seizure mahazar, does not contain the specimen impression of the seal stated to have been affixed on the bottles containing the sample.
20. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottles 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. [vide: Bhaskaran v. State of Kerala and another (2020 KHC 5296), Krishnadas v. State of Kerala (2019 KHC 191)].
21. The learned counsel for the appellant/accused further contended that there is no evidence to show that the specimen impression of the seal had been produced before the court and the same was forwarded to the Chemical Examiner's laboratory.
22. I have carefully perused the oral evidence of the official witnesses and the documents produced and CRL.A NO. 2961 OF 2008 10 marked from the side of the prosecution. There is absolutely no evidence as to the nature and description of the seal stated to have been used by the detecting officer and that the same had been provided to the Chemical Examiner. Ext.P7, copy of the forwarding note, is also silent regarding the specimen impression of the seal affixed on the bottles containing the sample. What is affixed in Ext.P7, is the official seal of the Judicial First Class Magistrate Court-Kuthuparamba against the specimen impression of the seal.
23. Ext.P8, the certificate of Chemical analysis, contains a certification that the seals on the bottles were 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 bottles 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.P8 cannot be accepted. CRL.A NO. 2961 OF 2008 11
24. While considering a fact situation in which the prosecution failed to establish that the specimen impression of the seal was not 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 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".
25. 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 learned Magistrate who countersigned Ext.P7, the copy of the forwarding note, also omitted to mention the date on which he affixed his CRL.A NO. 2961 OF 2008 12 signature.
26. Ext.P8, certificate of chemical analysis, would show that the bottles containing the sample were forwarded to the Chemical Examiner by the Judicial First Class Magistrate Court-Kuthuparamba as per letter dated 27.11.2002. Ext.P8 would show that bottles containing the sample were received in the laboratory on 28.12.2002.
27. Prosecution has not adduced any evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. The necessary inference is that the sample was forwarded to the laboratory on 27.11.2002, but the same reached the laboratory after one month, on 28.12.2002. In such a situation, the prosecution ought to have examined the property clerk of the court or the Excise official, who received the sample from the court or the Excise Official, who delivered the sample to the Chemical Examiner's laboratory to establish tamper proof despatch of the sample from the court to the laboratory. (vide: Viswanathan v. State of Kerala [(2016) CRL.A NO. 2961 OF 2008 13 3 KHC 38], Kumaran v. State of Kerala [2016 (4) KLT 718]).
28. It is the admitted case of the prosecution that the sample changed several hands before it reached the Chemical Examiner's laboratory. The sample remained in the custody of the property clerk of the court, the Excise official who received the same from the court and the Excise official who delivered the samples to 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 samples 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 [(1980) 3) SCC 303]).
29. In view of the above discussed infirmities, no evidentiary value can be attached to Ext.P8, certificate CRL.A NO. 2961 OF 2008 14 of Chemical analysis.
30. 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.
31. 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 alleged contraband substance said to have been seized from the possession of the accused. (vide: Sathi v. State of Kerala [2007 (1) KHC 778], Sasidharan v. State of Kerala [2007 (1) KLT 720]).
32. 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. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed CRL.A NO. 2961 OF 2008 15 above.
33. 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