Allowed

Vijayan @ Puthoor Vijayan v. State of Kerala

Kerala HC10 Sept 2021CRL.A/18/2014

Case brief

AI extract

What is this about?

Criminal appeal challenging conviction under Kerala Abkari Act for possession of arrack. High Court set aside conviction and acquitted accused due to failure of prosecution to prove compliance with mandatory procedures regarding specimen seals on sample, seizure mahazar, and forwarding note, creating reasonable doubt about tamper-free collection and analysis.

What did the court decide?

Conviction and sentence set aside; appellant acquitted; bail bond cancelled and accused set at liberty forthwith.

Vijayan @ Puthoor Vijayan Vs State of Kerala — Narcotics (NDPS) | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A. BADHARUDEEN

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FRIDAY, THE 10^TH DAY OF SEPTEMBER 2021 / 19TH BHADRA, 1943 CRL.A NO. 18 OF 2014

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AGAINST THE JUDGMENT IN SC 623/2012 OF ADDITIONAL DISTRICT T & SESSIONS COURT - II, PATHANAMTHITTA

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APPELLANT/1ST ACCUSED

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VIJAYAN @ PUTHOOR VIJAYAN

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S/O.KESAVAN, PUTHOOR VEEDU, MADAMON THEKKEKARA PERUNADU, PATHANAMTHITTA DISTRICT.

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BY ADV SRI.V.PHILIP MATHEW

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RESPONDENT/COMPLAINANT

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STATE OF KERALA

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REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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SRI. M.C. ASHI, PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 10.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Crl.Appeal No.18 of 2014

"C.R"

A.BADHARUDEEN, J .

Crl.Appeal No.18 of 2014

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Dated this the 10^th day of September, 2021

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J U D G M E N T

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This appeal is at the instance of the 1^st accused in S.C No.623/2012 on the file of the Additional District & Sessions JudgeII, Pathanamthitta. The State of Kerala represented by the Public Prosecutor is arrayed as the sole respondent herein. The judgment in

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the above case convicting and sentencing the accused for the offence under Section 8(1) r/w 8(2) of the Kerala Abkari Act is under challenge herein.

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The precise allegation of the prosecution is that on 21.12.2004 at about 6.30 p.m the 1^st and 2^nd accused were found carrying 5 litre of arrack near Govt. L.P.School, Thekkekara, Perunadu Village against the prohibitions contained in the Kerala Abkari Act. Both of them were nabbed redhandedly. Thereafter, crime registered alleging commission of offence under Section 8(1)

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Crl.Appeal No.18 of 2014 3

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r/w 8(2) of the Kerala Abkari Act. On completing investigation, charge laid before the Judicial First Class Magistrate Court-I, Ranni. The learned Magistrate committed the case to the Sessions Court for trial and disposal. Later this case was made over to Additional Sessions Judge-II, Pathanamthitta for trial and disposal.

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The trial court, after framing charge, recorded evidence in

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this matter. The evidence consists of PW1 to PW4, Exts.P1 to P8 and MO1 on the side of the prosecution. Thondy Clerk was examined as court witness (CW1).

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Though the accused were given opportunity to adduce defence evidence after questioning them under Section 313(1)(b) of Cr.P.C, no defence evidence was adduced.

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The learned Sessions Judge heard the matter and finally convicted and sentenced accused No.1 as under:

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The accused is sentenced to undergo R1 for 4 years and to pay a fine of Rs.1 Lakh in default to undergo SI for 3 months for the offence punishable u/s 8(1) r/w 8(2) of Abkari Act. A2 is acquitted u/s 235 Cr.P.C.

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The above conviction and sentence are under challenge

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before this Court on multiple grounds.

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Crl.Appeal No.18 of 2014

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Heard the learned counsel for the appellant Advocate Sri

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V.Philip Mathews and the learned Public Prosecutor Sri M.C.Ashi. Two technical grounds were argued by the learned counsel for the appellant to canvass acquittal. The learned counsel submitted that the Investigating Officer, who had drawn the sample from the accused, not given evidence as to the nature of seal affixed on the bottle containing the sample and the nature of seal used to affix in the seizure mahazar as well as the forwarding note. Therefore, the seizure itself is bad in law and as such conviction and sentence are liable to be set aside. Whereas the learned Public Prosecutor refuted this argument relying on the evidence of CW1 Thondy Clerk and PW4, the Investigating Officer.

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While addressing this argument, I have perused the evidence of PW4, the Investigating Officer. PW4 generally supported the prosecution case in tune with the allegations regarding the arrest of accused 1 and 2 and consequential recovery. However, his deposition does not contain the relevant aspect as to whether who had drawn the sample, the nature of seal affixed on the bottle

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Crl.Appeal No.18 of 2014 5

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containing the sample and the nature of the seal affixed in the seizure mahazar as well as in the forwarding note.

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It is settled by catena of decisions of this Court that the Detecting Officer, who had drawn the sample, had to give evidence as to the nature of the seal affixed on the bottle containing the sample, nature of the seal used to affix on the seizure mahazar, etc. Further the Detecting Officer should also produce the specimen of the seal before the court. Moreover the specimen of the seal shall be provided under seizure mahazar in the forwarding note so as to ensure tamper free collection and production of sample before the court for getting chemical analysis report. That apart, for ensuring that sample of contraband allegedly seized by the Investigating Officer from the accused had reached the Chemical Examiner for analysis, it has to be proved that seal affixed on the sample also is provided to the Chemical Examiner for comparison. Decisions reported in [2015 (1) KHC 822], Krishnan H. v. State ; [2019 KHC 191], Krishnadas v. State of Kerala ; [2016 KHC 175], Achuthan v. State of Kerala and [2020 KHC 5296], Bhaskaran K. v. State of

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Crl.Appeal No.18 of 2014 6

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Kerala & anr. a re relevant on this point.

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Coming to the second challenge; it is argued by the

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learned counsel for the appellant that no specimen seal affixed on the forwarding note marked as Ext.P6. So also there is no mention in the chemical analysis report marked as Ext.P8 to prove that specimen seal was provided to the Chemical Examiner. Further it is submitted that no specimen seal affixed in the forwarding note. On going through Exts.P6 and P8, this argument appears to be convincing and

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the learned Public Prosecutor also could not point out the specimen seal in the above documents.

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In this connection it has to be observed that in a case of

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this nature the prosecution could succeed only if it is proved that the contraband liquor, which was allegedly seized from the accused, ultimately reached the hands of the Chemical Examiner without possibility of tampering. Decisions reported in [1980 KHC 873, State of Rajasthan v. Daulat Ram ; 1993(2) KLT 550 (SC), Valsala v. State of Kerala ; 2007 KHC 3404, Sasidharan v. State of Kerala are given emphasis.

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Crl.Appeal No.18 of 2014

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While summarising the essential steps required to be followed to ensure tamper free collection and examination of the sample of the alleged contraband, the following measures to be followed:

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Steps to be followed by the officer collecting the

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: sample

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(i) Collection of sample from the alleged contraband by the

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Officer concerned shall be transparent eschewing possibility of tampering the sample in any manner;

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(ii) While collecting sample, the officer shall describe the nature of the specimen seal in the mahazar and the specimen seal shall be affixed on the mahazar, on the sample bottle, bottle containing the remaining part of contraband and the forwarding note;

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(iii) The sample so collected shall be produced before the jurisdictional Magistrate without any delay and the delay if any, shall be properly explained;

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(iv) Specimen seal affixed on the sample should be produced

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before the court along with the contraband for comparison;

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(v) The said officer shall depose about compliance of the

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above before the court while giving evidence.

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Steps to be followed by the Thondy Clerk who is

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authorised to receive the thondy:

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(i) The Thondy Clerk shall verify the specimen seal produced before the court and to compare the same with a seal affixed in the mahazar, collected sample and in the forwarding note to ensure that the seal of the sample is intact and there is no scope for tampering the same in between its collection and production before the court;

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(ii) While forwarding the sample to the laboratory, the Thondy

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Clerk shall ensure that specimen sample seal is affixed on the forwarding note;

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(iii) The forwarding letter shall contain the name of the official who is entrusted to handover the sample to the Chemical Examiner;

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(iv) Specimen seal also to be provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, is tallying with the seal affixed on the sample, to rule out the possibility of tampering while on transit of the sample;

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(v) Thondy Clerk must be examined to prove compliance of

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the above, also to prove that he has been in custody of the sample from the date of receipt of sample till the date of forwarding and also

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to prove compliance of item No.(i) to (iv) steps stated hereinabove.

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15. : Measures to be ensured by the Chemical Examiner

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(i) Chemical Examiner shall ensure production of specimen

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seal to verify as to whether the specimen seal provided in the forwarding note and the sample forwarded are tallying to rule out tampering of a sample during transit;

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(ii) In the chemical analysis report the said fact shall be stated so as to act upon the same without examining the Chemical Examiner as provided under Section 293 Cr.P.C.

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Unless and until the above safety measures are not ensured, it cannot be said that the sample of the contraband subjected

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to chemical examination by the Chemical Examiner is one collected from the possession of the accused. Any lacuna in this regard is a reason to disbelieve the recovery and the chemical analysis report. Consequently, the entire prosecution case would fail.

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It is argued by the learned counsel for the appellant that the second accused was acquitted in this case and culpability was fastened on the first accused alone where the evidence was not fully free from doubts, as pointed out.

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Though the learned Public Prosecutor attempted to justify the prosecution case based on the available evidence, the flaw in the prosecution evidence as discussed above failed to be justified.

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Here PW2 an independent witness examined to prove Ext.P1 and Ext.P2, mahazar and occurrence report admitted the signature therein. Similarly, PW1, the Detecting Officer supported the prosecution evidence, but nothing available in this evidence as to the description of the sample seal or the details of the methodology for collecting the sample. PW3 initially investigated the crime and later investigation was completed by PW4. In the evidence of PW4, nothing stated as to the nature of the seal affixed on the sample. Further nothing stated as regards to affixture of specimen seal on the mahazar and the forwarding note.

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In the case on hand prosecution examined Thondy Clerk

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as CW1 to prove the collection of sample by the court in tamper free manner. However, the evidence is too vague as to material particulars regarding the nature of specimen seal and comparison of the same. Therefore, the said evidence is quite insufficient in this regard.

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It is true that herein also chemical analysis report with a positive finding showing presence of prohibited liquor was produced. In the decision reported in AIR 2019 SC 3569, Vijai Pande v. State of U.P, the Apex Court held that mere production of a laboratory report that the sample tested from contraband substance cannot be conclusive proof by itself and that the sample seized and one tested are to be corelated.

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On evaluation of the evidence available, the mandates necessary to ensure tamper proof collection of sample of the alleged contraband and its examination without tampering as discussed in detail, failed to be established by the prosecution without reasonable doubts. Therefore, the accused/appellant herein is entitled to benefit of doubt and as such the conviction and sentence imposed by the trial

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court in the above circumstances cannot sustain. In view of the

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matter, the same are liable to be set aside.

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In the result, the appeal is allowed. Conviction and sentence imposed by the trial court against the 1^st accused are set aside. Consequently, the appellant/1^st accused is acquitted for the offence under Section 8(1) r/w 8(2) of the Abkari Act. The bail bond executed by the appellant/1^st accused shall stand cancelled. He is set at liberty forthwith.

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Amount, if any, being part of the fine deposited by the accused/appellant by order of this Court shall be refunded to him in accordance with the procedure established by law.

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Sd/-

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(A.BADHARUDEEN, JUDGE)

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rtr/

Vijayan @ Puthoor Vijayan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vijayan @ Puthoor Vijayan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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