Kerala High Court
Komalan vs State Of Kerala on 12 August, 2021
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 12TH DAY OF AUGUST 2021 / 21ST SRAVANA, 1943
CRL.A NO. 966 OF 2007
AGAINST JUDGMENT DATED 07.05.2007 IN SC 782/2004 OF
ADDITIONAL SESSIONS FAST TRACK COURT-I, THIRUVANANTHAPURAM
APPELLANT/ACCUSED:
KOMALAN
S/O. PONNAPPAN, SHEEBA BHAVAN, TC.72/1359,
PARAMBIL LANE, BALAVAN NAGAR, MUTTATHARA VILLAGE,
THIRUVANANTHAPURAM.
BY ADV SUMAN CHAKRAVARTHY
RESPONDENT/COMPLAINANT & STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
BY PUBLIC PROSECUTOR SRI. M.C. ASHI
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
12.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO.966 OF 2007
2
K. BABU J.
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Crl.A.No.966 of 2007
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Dated this the 12th day of August, 2021
J U D G M E N T
Aggrieved by the judgment dated 07.05.2007, passed by the learned Additional Sessions Judge, Fast Track Court No.I, Thiruvananthapuram in SC.No.782/2004, the accused has preferred this appeal.
2. By the impugned judgment the accused was convicted of the offence punishable under Section 55(a) r/w Section 8(2) of the Kerala Abkari Act.
3. The prosecution case is that on 06.12.2001 at about 06.00 P.m., the accused was found in possession of 3 liters of arrack in MO1 black Can along the side of the MLA road leading to Muttathara Perunelli Junction from Manacaud. The offence was detected by PW1, the Excise Preventive Officer of Excise Range Office, Thiruvananthapuram.
4. Final report was submitted against the accused CRL.A NO.966 OF 2007 3 for the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Thiruvananthapuram.
5. The case was committed to the Sessions Court, Thiruvananthapuram, 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) r/w 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 4, Exts.P1 to P6 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 the arguments CRL.A NO.966 OF 2007 4 addressed from both sides, found that the accused is guilty of the offence under Section 55(a) r/w 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/-.
8. Heard Sri.Suman Chakravarthy, the learned counsel appearing for the appellant and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent.
9. The learned counsel for the appellant/accused 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.
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 CRL.A NO.966 OF 2007 5 against the accused are sustainable or not. THE POINT
12. On 06.12.2001 PW1 was on patrol duty. At about 05.55 p.m., he found the accused carrying MO1 Can at the place of occurrence. On inspection PW1 ascertained that the Can contained 3 liters of illicit arrack. The accused was arrested and the contraband substance was seized by PW1. He prepared Ext.P1 seizure mahazar.
13. PW3, the Excise Preventive Officer who had accompanied PW1 in the search and seizure, has given evidence in support of the version given by PW1. PW2, the property clerk of the court, gave evidence that she had drawn sample from the contraband substance produced before the court. PW4 conducted investigation and submitted final report.
14. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence ultimately reached the Chemical Examiner's CRL.A NO.966 OF 2007 6 laboratory:
(a) The prosecution failed to establish that the contraband substance stated to have been seized from the place of occurrence reached the court in a tamper proof condition.
(b) No sample was drawn at the scene of occurrence by the detecting officer.
(c) The forwarding note/requisition for sending the sample has not been produced and marked.
(d) There is no evidence to show that the specimen impression of the seal had been provided to the Chemical Examiner's laboratory.
15. The detecting officer has not given evidence as to the nature and description of the seal affixed on MO1 Can. Ext.P1, seizure mahazar, is also silent about the nature and description of the seal used by the detecting officer.
16. The specimen impression of the seal used by the detecting officer to seal MO1 had not been produced before the court. The requirement of evidence regarding CRL.A NO.966 OF 2007 7 the nature and description of the seal used by the detecting officer is to enable the court to satisfy the genuineness of the articles produced before the court. If the specimen impression of the seal used by the detecting officer is produced before the court, the official who receives the property in the court can ascertain that the seal affixed on the same is getting tallied with the specimen impression produced.
17. The admitted case of the prosecution is that sample was not drawn at the scene of occurrence by the detecting officer. PW2, the property clerk of the court, gave evidence that she had drawn sample from the contraband substance produced. She would further state that the sample was drawn as per the instructions of the learned Magistrate.
18. I have gone through the materials placed before the Court. There is nothing to show that the learned Magistrate directed PW2 to take any specified quantity of arrack from MO1 as sample and to forward the same to the Chemical Examiner's laboratory. No record of CRL.A NO.966 OF 2007 8 proceedings was brought before the Court to convince that the learned Magistrate directed or supervised the process of taking sample in the court by PW2. The sanctity of the act of taking sample by PW2 without any specific direction of the learned Magistrate is under challenge.
19. PW2 gave evidence that she collected 180 ml of arrack from the Can available in the court as per the requisition produced. The requisition/forwarding note has not been produced and marked in evidence. The relevance of the requisition/forwarding note is that it contains the following details:
(a) The quantity of the contraband substance taken as sample.
(b) The specimen impression of the seal affixed on the bottle containing the sample.
(c) The official with whom the sample was sent to the Chemical Examiner's laboratory.
(d) The date on which the sample was taken.
20. In the absence of a forwarding note marked and CRL.A NO.966 OF 2007 9 produced it cannot be held that prosecution could establish the tamper proof despatch of the sample to the laboratory.
21. In Ramachandran v. State of Kerala [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court 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 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."
22. 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 CRL.A NO.966 OF 2007 10 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. Though PW2 stated that sample seal was forwarded to the Chemical Examiner's laboratory, the prosecution could not convince the court regarding the nature and description of the seal. No contemporaneous records were seen prepared and produced before the court to convince the procedures followed in the taking of sample. Ext.P6 would contain a statement that the seal on the bottle was intact and found tallied with the sample seal provided. In the absence of any convincing evidence that the specimen impression of the seal was forwarded to the Chemical Examiner, the afore statement is not acceptable.
24. Yet another aspect to be considered is that there is no evidence to show the name of the official with whom the sample was forwarded to the Chemical CRL.A NO.966 OF 2007 11 Examiner's laboratory. In Ext.P6, certificate of chemical analysis, the space meant for writing the name of the Excise Guard through whom the sample was delivered to the laboratory is left unfilled. The prosecution failed to establish the custody of the bottle containing the sample after the same was forwarded to the Chemical Examiner's laboratory, as there is no evidence to ascertain the official who received the sample from the court and delivered the same to the Chemical Examiner's laboratory. The date on which the said official received the sample is also not available. The lack of evidence regarding the custody of the sample during the interregnum between the despatch of the same from the court and the date on which the same reached the laboratory is a missing link in the chain of evidence to connect the accused with the contraband substance. In the instance case prosecution failed to establish that:
(a) MO1 Can was produced before the court in a tamper proof condition.
CRL.A NO.966 OF 2007 12
(b) The contraband substance actually recovered from the possession of the accused was taken as sample and forwarded to the Chemical Examiner's laboratory.
(c) The sample drawn in the court reached the Chemical Examiner's laboratory without tampering.
25. In such a situation no evidentiary value can be attached to Ext.P6 certificate of chemical analysis.
26. 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.
27. 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 CRL.A NO.966 OF 2007 13 accused. (see: Sathi v. State of Kerala [2007(1) KHC 778]).
28. 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 above.
29. 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 is therefore not guilty of the offence punishable under Section 55(a) r/w 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