Kerala High Court
Sundar Raj vs State Of Kerala on 1 July, 2021
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 1ST DAY OF JULY 2021 / 10TH ASHADHA, 1943
CRL.A NO. 2399 OF 2006
AGAINST THE JUDGMENT IN SC 467/2001 OF ADDITIONAL S.C.-TRIAL
OF ABKARI ACT CASES,NEYYATTINKARA, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
SUNDAR RAJ
S/O.THANKARAJAN,
PERIYAVILA PUTHEN VEEDU, THETTIYODU,
AYINKAMOM, PARASSALA, THIRUVANANTHAPURAM.
BY ADV SRI.G.SUDHEER
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY ADV
SRI.M.S.BREEZ, SR.PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A NO. 2399 OF 2006
2
JUDGMENT
Aggrieved by the judgment dated 05.08.2006, passed by the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara in Sessions Case No.467 of 2001, the accused has preferred this appeal.
2. The trial court convicted the accused for the offence punishable under Section 58 of the Abkari Act.
3. The prosecution case is that on 01.05.1998 at about 4 p.m. while the Sub Inspector of Police, Parassala Police Station was on patrol duty, the accused was found in possession of 13 litres of illicit arrack in a garden land near Thettyodu Channel in Parassala Village. The Sub Inspector seized the contraband articles and arrested the accused. After completion of investigation, final report was filed against the accused before the Judicial Magistrate of First Class II, Neyyattinkara. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Additional Sessions Court, Neyyattinkara. On appearance of the accused, charge was framed against the accused 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 CRL.A NO. 2399 OF 2006 3 offence.
4. The prosecution examined PWs 1 to 7 and proved Exhibits P1 to P7 and MOs 1 to 3.
5. After closure of evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The trial court heard the matter under Section 232 of Cr.P.C. and found that there was evidence against the accused. The accused was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court after hearing the arguments addressed from both sides convicted the accused and sentenced him to undergo rigorous imprisonment for a term of 3 years and to pay a fine of Rs.1,00,000/-.
6. Heard Sri.G.Sudheer, learned counsel for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor.
7. The learned counsel for the appellant/accused raised the following grounds to challenge the judgment of conviction.
(a) The prosecution failed to establish that the appellant/accused was in possession of the properties produced before the court.
(b) The prosecution has not succeeded in establishing that CRL.A NO. 2399 OF 2006 4 the contraband allegedly seized from the place of occurrence reached the court and the sample said to have been drawn eventually reached the Chemical Examiner's Laboratory.
8. The learned Public Prosecutor contended that the Prosecution successfully established the charge against the accused.
9. The only point that arises for consideration is whether the judgment of conviction and sentence passed against the accused is sustainable or not.
10. The point.
PW3, the detecting officer, was the Sub Inspector of Police, Parassala. PW3 has given evidence that on 01.05.1998 the accused was found in possession of 10 litres of arrack in a 10 litre can and about 3 litres of arrack in another can having a capacity of 5 litres at Thettiyodu in a garden land. PW3 arrested the accused from the spot and seized the contraband articles from his possession. He prepared Ext.P1 seizure Mahazar. According to PW3 he sealed the cans containing illicit arrack. PW3, on 02.05.1998, produced the properties marked as MOs 1 to 3, before the JFCM II, Neyyattinkara.
11. PW2, a Police Constable attached to Parassala Police Station who had accompanied PW3 in the alleged search and seizure, CRL.A NO. 2399 OF 2006 5 supported the version given by PW3.
12. PW1, an independent witness, did not support the Prosecution case. PW4 was the Thondi Clerk of the Judicial First Class Magistrate Court II, Neyyattinkara. PW4 has given evidence that on 02.05.1998 the properties mentioned in Ext.P5 property list were produced before the court and that as per directions of the learned Magistrate she received the same. PW4 further stated that she had collected samples from the can containing illicit liquor. She has not stated the date on which she collected the samples. Ext.P2 is the FIR registered on the basis of the suo motu information brought in by PW3. Ext.P3 and Ext.P4 are the Arrest Memo and Remand Report respectively. The list of properties produced before the court is marked as Ext.P5. Ext.P6 is the Chemical Analysis Report certifying that Ethyl Alcohol was detected in the samples sent for examination. The relevant page of the Thondi Register maintained at the JFCM II, Neyyattinkara has been marked as Ext.P7 through PW4.
13. The learned counsel for the accused submitted that the specimen of the seal used for sealing the contraband, recovered from the place of occurrence, has not been produced before the Court. It is also submitted that the nature and description of the seal used by PW3 has not been narrated in Ext.P1 seizure mahazar. PW3 has not given CRL.A NO. 2399 OF 2006 6 evidence as to the nature and description of the seal that he had used for sealing the cans allegedly recovered from the spot. PW2 or the other official witnesses have not given evidence as to the nature and description of the seal used by PW3 at the spot. This Court is completely in the dark as to the nature and description of the seal used by PW3.
14. The copy of the forwarding note describing the samples sent for chemical examination has not been placed before the court. The specimen impression of the seal affixed on the bottles containing the sample has also not been produced and marked. The specimen of 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 samples forwarded to the Chemical Examiner (vide: Achuthan v. State of Kerala [ILR 2016 (2) KER 145], Bhaskaran v. State of Kerala and another [2020 KHC 5296]).
15. Ext.P5, the property list, shows that the properties seized from the spot were produced before the court on 02.05.1998 itself. It is further seen from Ext.P5 that on 04.05.1998 the properties were entrusted to the officials of Parassala Police Station as per the orders of the learned Magistrate. There is nothing to show as to who received those properties from the court and when those properties were again CRL.A NO. 2399 OF 2006 7 brought back to the court. PW4, the Thondi Clerk, only stated that she received the properties on 02.05.1998. She added that she had extracted the samples. It is pertinent to note that her evidence is silent as to the date on which the sample was drawn. This Court is kept in the dark as to who received the properties from the court on 04.05.1998 and who brought back the same to the court. This Court is also in the dark as to the date on which the sample was drawn. No contemporaneous record was prepared at the time of taking sample. There is absolutely no evidence as to nature and description of the seal affixed on the bottle containing the sample. Ext.P6, Chemical Analysis Report, shows that as per a letter dated 29.05.1999 the bottles containing the samples were received by the Chemical Examiner's Laboratory. This Court is in the dark as to the officials who handled the contraband articles during the period from 04.05.1998 to 29.05.1999. It is evident that the samples remained in the custody of many officials. None of them were examined by the Prosecution to prove that while in their custody the seals were not tampered with.
16. There is absolutely no evidence to convince the court that specimen impression of the seal has been provided to the Chemical Examiner. None of the prosecution witnesses have given evidence on CRL.A NO. 2399 OF 2006 8 those aspects. In Rajamma v. State of Kerala [(2014) 1 KLT
506)], while dealing with the question of lack of evidence regarding the production of specimen seal before the court to be provided to the Chemical Examiner, this Court held as follows:-
"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 PW.1 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."
17. There is also no evidence as to who received the sample from the court and on which date. The prosecution failed to establish these vital aspects, which are imperative to form a link evidence to show that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused reached the hands of the Analyst. In the absence of this link evidence no value can be given to Ext.P6 certificate of chemical analysis.
18. 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 CRL.A NO. 2399 OF 2006 9 was drawn from the bulk quantity of alleged contraband substance said to have been possessed by the accused. This is more so when the contraband might have changed several hands before it reached the hands of the Chemical Examiner (vide: State of Rajasthan v. Daulat Ram [AIR 1980 Supreme Court 1314], Valsala v. State of Kerala [AIR 1994 SC 117], Sathi v. State of Kerala [2007(1) KHC 778]). The prosecution failed to establish the link connecting the accused with the contraband substance seized from the place of occurrence and the sample analysed at the laboratory.
Resultantly, the conviction entered by the court below overlooking these vital aspects of the matter cannot be sustained. In the result, the appeal is allowed. The appellant/accused is acquitted of the charge levelled against him. He is set at liberty.
Sd/-
K.BABU JUDGE SCS