Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 CRL.A NO. 914 OF 2008 AGAINST THE JUDGMENT DATED 12.05.2008 IN SC 335/2006 OF ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD APPELLANTS/ACCUSED: 1 UNNIKRISHNAN, S/O BALAN NAMBIAR, KRISHNA NIVAS, CHELLIPALLAM, PARAPPANANGADI, MALAPPURAM DISTRICT. 2 FOUSI, S/O SHAFI, DOOR NO.201, 7TH CROSS ROAD, SIVAJI NAGAR, BANGALORE. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL 108692 RESPONDENT/COMPLAINANT: STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
------------------------------------------- Crl.A No. 914 of 2008 --------------------------------------------- Dated this the 28th day of October, 2022
JUDGMENT
Aggrieved by the judgment dated 12.05.2008, passed by the Additional Sessions Court (Adhoc -I), Palakkad in Sessions Case No.335 of 2006, the two accused have preferred this appeal. The appellants/accused were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years each and pay a fine of Rs.2 Lakhs each.
2. The prosecution case is that on 27.08.2005 at 9.00 p.m.,
the accused were found in possession of 10120 litres of rectified spirit in a Lorry bearing No.MH 04-AL 582 at Walayar Check-post in violation of the provisions of the Abkari Act.
3. After completing the investigation, final report was
submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charge was framed against them for the offence punishable under Section 55(a) of the Abkari Act. The accused pleaded not guilty to
the charges and therefore, they came to be tried by the trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P8, and MOs 1 & 2 series.
5. After the closure of the evidence on behalf of the
prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and they were convicted thereunder.
6. Heard Sri. P.Vijaya Bhanu, the learned senior counsel appearing for the appellants/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellants challenged the
judgment of conviction and sentence on the ground that the
prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.
8. The learned counsel for the appellants relied on the following circumstances to contend that the contraband allegedly seized from the place of occurrence was not analysed in the Chemical Examiner’s Laboratory
(a) The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory.
(b) Ext.P6, forwarding note/requisition for sending sample does not contain the name of the official with whom the sample was forwarded,
(c) The officials who handled the sample during its course of transit from the Court to the laboratory were not examined by the prosecution.
9. Relying on Kumaran v. State of Kerala [2016 (4) KLT
718], the learned senior counsel for the appellants contended that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. The learned counsel has taken me to Ext.P6 forwarding note/requisition for sending sample wherein the space meant for entering the name of the official with whom the sample was forwarded has been left vacant. The learned Magistrate who countersigned Ext.P6 has put his initials, but the date on which he made the initial is not available in it.
10. While considering 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 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 tamper-proof 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.”
11. Neither the Property Clerk of the Court nor the Excise
Guard concerned was examined by the prosecution. Non- examination of these officials who handled the sample is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is further fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].
12. As the prosecution failed to establish that the
contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. Therefore, the prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, the appellants/accused are entitled to the benefit of doubt.
13. Resultantly, the conviction and sentence passed by the
trial Court cannot be sustained. The appellants/accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/- K.BABU JUDGE VPK