Binu v. State Of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE P.BHAVADASAN TUESDAY, THE 15TH DAY OF DECEMBER 2015/24TH AGRAHAYANA, 1937 CRL.A.No. 530 of 2006 ( ) -------------------------- AGAINST THE JUDGMENT IN SC 369/2001 of ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK-I) TRIVANDRUM DATED 13-12-2005 IN CP 90/2000 OF JUDICIAL FIRST CLASS MAGISTRATE-I, ATTINGAL APPELLANT(S)/(ACCUSED)::

---------------------------------------------- BINU, S/O. RAJAN, CHIRAYIL VEEDU, HARIJAN COLONY, VEILOOR VILLAGE THIRUVANANTHAPURAM DISTRICT.

BY ADV. SRI.M.R.RAJESH RESPONDENT(S)/(COMPLAINANT)::

---------------------------------------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR HIGH COURT OF KERALA.

BY PUBLIC PROSECUTOR SMT. LILLY LESLIE THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-12-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ds

P.BHAVADASAN, J.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 15th day of December, 2015

J U D G M E N T

The accused was prosecuted for the offence punishable under Section 55(a) of the Abkari Act. He was found guilty. He was therefore convicted and sentenced to suffer rigorous imprisonment for three years and to pay a fine of 1 lakh ₹ with a default clause of rigorous imprisonment for a further period of one year. Set off as per law was allowed. 2.

PW4 was the Excise Inspector of Kazhakuttom Excise Range at the relevant time. On 27.11.1997, as usual, he along with his team of officers had set out for patrol duty. At about 11 a.m., on that day, when they reached the Holy Cross Hospital, they found the accused coming along the road with a can. He was intercepted and the can was seized. The can contained some sort of liquid. On examination of the contents by smell and taste, they identified it as arrack. The can was taken into custody and it was sealed and

-2labelled. Ext.P1 is the mahazar prepared at the spot and Ext.P2 is the arrest memo. They returned to the station along with the accused, the contraband article and the records and registered crime as per Ext.P4 occurrence report. He had the accused produced before court and he claims to have sent a forwarding note requesting the court to take samples and send it to chemical analysis. PW5 took over investigation. He recorded statements of witnesses and obtained Ext.P5 Chemical Analysis Report. He completed investigation and laid charge before court. 3.

The court before which the final report was laid, took cognizance of the offence and finding the offence to be exclusively triable by a Court of Sessions, committed the case to Sessions Court, Thiruvananthapuram under Section 209 of Cr.P.C. after following the necessary procedures. The said court made over the case to Additional District & Sessions Court, Fast Track-I, Thiruvananthapuram, for trial and disposal.

-34.

The latter court, on receipt of records and appearance of the accused before the said court, framed charge for the offence punishable under Section 55(a) of the Abkari Act.

5.

To the charge the accused pleaded not guilty and claimed to be tried. The prosecution therefore had PWs 1 to 5 examined and had Exts.P1 to P5 marked. MO1 was got identified and marked.

6.

After the close of prosecution evidence, the accused was questioned under Section 313 Cr.P.C. He denied all the incriminating circumstances brought out in evidence against him and maintained that he is innocent. 7.

Finding that he could not be acquitted under Section 232 Cr.P.C., he was asked to enter on his defence. He chose to adduce no evidence.

8.

The court below, acting on the evidence of PWs 3 and 4 and impressed by the fact that Ext.P1 mahazar, which is a contemporaneous document drawn up soon after the

-4detection and also the fact that the accused and contraband article were promptly produced before court, came to the conclusion that the offence has been clearly established as against the accused. He was therefore convicted and sentenced as already mentioned.

9.

Assailing the conviction and sentence, the learned counsel for the appellant contended that the appellant is entitled to succeed on two grounds. They are (1) there is no evidence as to who had taken the sample and (2) there is no forwarding note seen produced and marked in the case and specimen seal is not available in the case. Elaborating on the first aspect, the learned counsel for the appellant pointed out that the evidence of PW4 would clearly show that the can as a whole was sealed at the place of the incident and no sample was taken either by PW3 or PW4. That it is clear from the evidence of PW4 that a requisition was made to the court to take sample and to send the same for chemical analysis. Obviously, it means that the sample

-5was taken from the court. The learned counsel pointed out that this Court had occasion to hold that in such cases, the Thondi Clerk, who was authorised by the Magistrate to take the sample ought to have been examined and in the absence of his evidence, it cannot be held that proper sampling had been done.

Further, the learned counsel pointed out that as has been held in the decision reported in Joseph v.

State of Kerala (2009 (4) KHC 537), Majeedkutty v. Excise Inspector (2015 (1) KLT 624) and Krishnan v. State (2015 (2) KLT SN 8), the forwarding note is not seen produced and there is no evidence of the seal said to have been affixed on the sample sent for chemical analysis. These two vital aspects have been omitted to be noticed by the court below and they vitiate the conviction. 10.

The learned Public Prosecutor on the other hand sought to bank on the evidence of PWs 3 and 4 and contended that leaving aside all technical aspects, it is clear from the evidence of PWs 3 and 4 that the accused was

-6found carrying contraband article.

11.

It is very evident from the evidence of PW4 that the Detecting Officer had not taken any sample from the contraband article. He had sealed the can as a whole and produced it before court. It is clear from his evidence that a forwarding note, requesting the court to take sample and then send it for chemical examination, seems to have been made.

12.

This Court was clear enough to point out that in case no sample is taken by the Detecting Officer and it is left to the mercy of the court to take the sample, it is absolutely necessary that the person who was authorised by the court to take the sample ought to be examined. So also, this Court had occasion to hold that in order to ensure that the sample sent for chemical analysis is the sample taken from the contraband article seized from the possession of the accused, the specimen sample seal should be before court. That it needs to be so, is evidenced from the form of

-7forwarding note which contains a column for providing the sample seal.

13.

If the above tests are to be applied, necessarily the prosecution should fail.

14.

In the decision reported in Joseph v. State of Kerala (2009 (4) KHC 537), it was held as follows: "18. Yet another infirmity in the prosecution case is that there is no request forwarding note either produced or marked to indicate that a request was made to the Magistrate to send the sample bottle to the chemical examiner for analysis.

P.W.6 who conducted the investigation, has no case that he had made any such request or had filed any forwarding note. Likewise, P.W.1 also has no case that he had made a request to the Magistrate to send the sample bottle to the chemical examiner.

Ext.P4 certificate of chemical analysis dated 24.11.1997 is relied on by the prosecution to show that the sample bottle was duly despatched to the chemical examiner for analysis. In the absence of any forwarding note or requisition, it is not explained as to how the Magistrate forwarded a sample bottle to the chemical examiner as per his covering

-8letter dated 19.8.1997 referred to in Ext.P4 certificate. Even the office copy of the covering letter has not been produced. The thondi section clerk who was the custodian of the properties before the Magistrate, was not examined to prove matters such as the date of receipt of the property before the Magistrate, the condition in which those properties were received in court including the fact whether a sample bottle was received and if so, whether the seals if any on such bottle were in tact, the date of despatch of the sample to the chemical examiner and the nature of the custody of the sample bottle until then. The prosecution can succeed in securing a conviction against the appellant only if it is shown that the sample which was subjected to chemical analysis as evidenced by Ext.P4 certificate was the very same sample which was drawn from the bulk quantity of contraband liquor allegedly held by the accused and which after change of hands, eventually reached the hands of the chemical examiner."

15.

In the decision reported in Krishnan v. State (2015 (2) KLT SN 8), it was held as follows:

"Ext.P5 is a copy of the Forwarding Note

-9submitted before the court for sending sample for subjecting it to chemical analysis. A specific space is provided in the Forwarding Note for affixing the sample seal. No such sample seal was affixed on Ext.P5. Whether the sample seal was affixed on the original of Ext.P5 sent to the Chemical Examiner? Normally, if the sample seal is not appearing in the copy of the Forwarding Note, in this case it is Ext.P5, it has to be presumed that such sample seal was not affixed on the original Forwarding Note unless proved otherwise. A copy of the Forwarding Note is kept in the office of the court for serving certain purposes. The purposes are evident from the contents of the form of the Forwarding Note itself.

They include the quantity and description of the sample drawn from the bulk of the contraband, the details of the case and the space for providing the sample impression of the seal affixed on the sample taken from the bulk of the contraband. Therefore, as already stated, the absence of sample seal in the space provided in the copy of the Forwarding Note is sufficient reason for presuming that the sample seal is not provided in the original Forwarding Note. Of course, this is only a rebuttable presumption. In the case on hand, such presumption has not been rebutted by the prosecution."

-1016.

In the decision reported in Majeedkutty v. Excise Inspector (2015 (1) KLT 624), it was held as follows: "7. It is the prosecution case that the bulk of the contraband as well as the sample collected were sealed by PW3. PW3 also deposed that they were so sealed. The description in the List of Property does not show that the bulk was so sealed. Be that as it may, the sample is described in the List of Property as sealed. Whose seal was so affixed? No evidence is available regarding that aspect of the matter. It is noted in Ext.P3 Certificate of Chemical Analysis that the seal on the bottle was intact and found tallied with the sample seal provided. Whose sample seal was so provided? None of the excise officials examined in the case deposed that sample seal was so provided. No Forwarding Note is seen among the case records.

PW4 deposed before the court that he had submitted a requisition before the court for subjecting the sample to Chemical Analysis. It is usual that seal of the court will be affixed while sending the sample to the Chemical Examiner for analysis. Therefore, the sample seal noted in Ext.P3 can be the seal of the court also.

-11sample of the contraband allegedly seized from the appellant has, in fact, reached the Chemical Examiner for analysis. Such an assurance is possible only when the sample seal of the seal affixed on the sample was provided to the Chemical Examiner for comparison. Such a link evidence is missing in this case. Therefore, there is no assurance that the Chemical Examiner examined really the sample taken from the bulk allegedly seized from the appellant in this case. Hence, the report in Ext.P3 that ethyl alcohol was detected in the sample will not connect the accused with the crime alleged.

8. This Court in Rajamma v. State of Kerala (2014

(1) KLT 506) has 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

-12the 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 who is a lady."

A Division Bench of this Court in Ravi v. State of Kerala (2011 (3) KLT 353) has held that the prosecution can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner in a tamper-proof condition. Also held that no conviction can be entered against the accused in a prosecution unless it is proved that the sample which was analysed in the Chemical Examiner's Laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused."

17.

Applying the principle laid down in the above decisions in the case on hand, it follows that in the absence of forwarding note along with the sample of the specimen seal, the prosecution case has to fail. Equally formidable is the second ground taken.

For the above reasons, this appeal is allowed. The conviction and sentence passed by the court below are set

-13aside and the accused stands acquitted of all charges levelled against him. His bail bond shall stand cancelled and he is set at liberty.

Sd/- P.BHAVADASAN JUDGE ds //True copy// P.A. to Judge