Kerala High Court
Sasidharan,S/O Ramakrishanan vs State Of Kerala on 16 July, 2021
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 16TH DAY OF JULY 2021 / 25TH ASHADHA, 1943
CRL.A NO. 2369 OF 2006
AGAINST THE JUDGMENT IN SC 410/2004 OF ADDITIONAL SESSIONS
COURT (ADHOC)-II, THODUPUZHA, IDUKKI
APPELLANT/ACCUSED:
SASIDHARAN, S/O RAMAKRISHANAN,
NEDUPARATHEKKETHIL HOUSE,
KANJIKKUZHY KARA, KANJIKKUZHY VILLAGE.
BY ADVS.
T.J.MICHAEL
P.NOOR ZAMEER
RESPONDENT/COMPLAINANT:
STATE OF KERALA,
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
SRI. M.S. BREEZ (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
16.07.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A No.2369 of 2006 2
K.BABU, J.
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Crl.A No.2369 of 2006
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Dated this the 16th day of July, 2021
JUDGMENT
Aggrieved by the judgment dated 9.11.2006, passed by the Additional Sessions Judge (Adhoc) II, Thodupuzha, in S.C.No.410/2004, the accused has preferred this appeal.
2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act.
3. The prosecution case is that on 23.1.2003 at 7.50 pm., the accused was found in possession of illicit arrack in two 750ml bottles. One bottle contained 350 ml of arrack and the other contained 300 ml of arrack. The accused was arrested and the contraband substance was seized by the Sub Inspector of Police, Kanjikuzhy, who registered FIR No.8/2003, alleging offence punishable under Section 8(2) of the Abkari Act.
4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court I, Idukki. The case was committed to the Crl.A No.2369 of 2006 3 Sessions Court, Thodupuzha from where it was made over to the Additional Sessions Court (Adhoc) II, Thodupuzha. 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.
5. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P8 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. From the side of the defence DWs 1 and 2 were examined. The learned trial court, after hearing the 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. He was sentenced to undergo simple imprisonment for a term of six months and to pay a fine of Rs.1,00,000/-.
7. Heard Sri.T.J.Michael, the learned counsel appearing Crl.A No.2369 of 2006 4 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 raised the following grounds to challenge the judgment of conviction:
a) The delay in the production of the
properties before the court has not been
satisfactorily explained.
b) The prosecution failed to establish that
the contraband substance said to have been seized from the place of occurrence eventually reached the Chemical Examiner's laboratory.
9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused. He contended that sufficient materials are there to establish the prosecution case.
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. PW3, the detecting officer, has given evidence that on getting reliable information that the accused was engaged in sale of illicit arrack on the backside of the bakery run by him at Crl.A No.2369 of 2006 5 Kanjikuzhy town, the police team led by him proceeded to there. He has given evidence that the accused was found carrying a bottle and a glass tumbler at the place of occurrence. According to PW3, he also found another bottle near the accused. On verification, PW3 found that both the bottles contained illicit arrack. PW3 has given evidence that the accused was arrested from the spot and the bottles containing the contraband substance and the glass tumbler were seized from the possession of the accused as per Ext.P1 seizure mahazar. PW3 sealed the bottles seized from the possession of the accused.
12. PWs 1, 2 and 5, the independent witnesses, did not support the prosecution case.
13. PW4, the Sub Inspector of Police, Kanjikuzhy completed the investigation and submitted final report before the committal court.
14. The learned counsel for the appellant/accused submitted that the delay in the production of the properties before the court has not been satisfactorily explained by the prosecution. The properties were seized on 23.1.2003. The articles were produced before the court only on 25.1.2003, which is evident from Ext.P4 list of properties sent to Magistrate. The detecting officer has not given any explanation for the delay in the Crl.A No.2369 of 2006 6 production of the properties before the court.
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:
"8(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 properties before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the properties. In the instant case there is no satisfactory explanation for the delay in the production of the properties. The unexplained delay in the production of properties would lead us to the conclusion that tampering with the samples could not be ruled out.
17. The learned counsel for the appellant/accused further contended that there is no convincing evidence to establish that the contraband substance allegedly recovered from the possession of the accused reached the Chemical Examiner's laboratory. The Crl.A No.2369 of 2006 7 learned counsel relied on the following grounds to substantiate his contentions:
a) The detecting officer, PW3, has not given evidence as to the nature and description of the seal affixed on the bottles seized from the place of occurrence.
b) Ext.P1 seizure mahazar, the contemporaneous document evidencing seizure, is silent about the nature and description of the seal used.
c) There is no convincing evidence to show that the specimen impression of the seal was forwarded to the Chemical Examiner's laboratory.
18. PW3, the detecting officer, has not given evidence as to the nature and description of the seal affixed on the bottles allegedly seized from the possession of the accused and later sent to the Chemical Examiner's laboratory for analysis. Ext.P1 seizure mahazar is also silent about the specimen of the seal stated to have been affixed on the bottles seized from the scene of occurrence. The specimen of the seal has not been produced before the court.
19. In Bhaskaran v. State of Kerala and another Crl.A No.2369 of 2006 8 (2020 KHC 5296), while considering a case in which the nature of the seal used was not mentioned in the seizure mahazar and the detecting officer failed to give evidence as to the nature of the seal, this Court held thus:
"21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle 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. The specimen of the 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 sample produced in the court (See Achuthan v. State of Kerala :
2016(1) KLD 391 : ILR 2016(2) Ker. 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector : 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle is not produced before the Court and forwarded to the chemical examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed on the sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014(1) KLT 506)"
(Emphasis supplied)
20. In Krishnadas v. State of Kerala (2019 KHC
191) this Court held thus:
"7.PW6 stated that he received the properties at the Range Office after two days, and he does not know in Crl.A No.2369 of 2006 9 whose custody the properties were for two days. PW1 stated that it was produced at the Range Office on the date of detection itself. The forwarding note contains the specimen of the seal affixed on the sample. But nobody has explained what seal was affixed on the sample. The detecting officer is expected to tell the court that he had affixed his personal seal on the sample, and also tell the Court what seal it is. Of course, it is true that the forwarding note contains the seal, but PW1 has not stated that it is his personal seal. This is also an infirmity affecting the prosecution case. In view of the serious doubts regarding the analysis of sample due to the unexplained delay at two stags, I feel it inappropriate and unjust to find the accused guilty." (Emphasis supplied)
21. The learned counsel for the appellant/accused further submitted that in the absence of any convincing evidence to show that the specimen impression of the seal has been produced before the court and the same was forwarded to the Chemical Examiner's laboratory, no evidentiary value can be attached to Ext.P6 certificate of Chemical Analysis.
22. Ext.P6 certificate of chemical analysis would show that one sealed packet having two sealed bottles marked as 1 and 2 were received in the laboratory on 28.1.2003.
23. In Ext.P6, the Assistant Chemical Examiner has stated that the seals on the packet were intact and found tallied with the sample seal provided. The Chemical Examiner has not certified that the seals on the bottles containing the sample were intact and found tallied with any specimen impression of the seal provided. Crl.A No.2369 of 2006 10 The capacity of the bottles containing the contraband substance has also not been mentioned in Ext.P6. This Court is not in a position to conclude that the specimen impression of the seal stated to have been affixed on the bottle containing the sample was provided to Chemical Examiner for verification. While considering a case in which there was no evidence to show that the specimen impression of the seal was provided 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".
24. 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 Crl.A No.2369 of 2006 11 value can be given to Ext.P6 chemical analysis report.
25. Ext.P5, the copy of the forwarding note, is silent regarding the person with whom the bottles containing the sample were sent to the Chemical Examiner's laboratory. The date on which the bottles containing the sample were forwarded to the Chemical Examiner is also not mentioned in Ext.P5. This Court is in the dark as to who received the bottles containing the sample from the court. The learned Magistrate has not affixed his signature or initial in Ext.P5. In such a situation, the prosecution ought to have examined the Thondi Clerk of the court or the police official concerned to prove the tamper proof despatch of the sample to the laboratory. While dealing with a similar fact situation, this Court in Kumaran v. State of Kerala (2016(4) KLT 718) held thus:
"7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is Crl.A No.2369 of 2006 12 normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard concerned to prove the tamper- proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamperproof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."
26. Admittedly, the sample changed several hands. The bottle containing the sample was handled by the Thondi Clerk of the court, the police official, who received the same from the court and the official concerned who delivered the same to the Chemical Examiner's laboratory. None of these witnesses were examined to establish the tamper proof despatch of the sample to the laboratory.
27. 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.
Crl.A No.2369 of 2006 13
28. 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. 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. (vide: State of Rajasthan v. Daulat Ram [AIR(1980)SC 1314]. 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/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. The accused is acquitted of the charge. He is set at liberty.
The Crl.Appeal is allowed as above.
Sd/-
K. BABU JUDGE ab