Allowed

Vasu v. State of Kerala

Kerala HC7 Apr 2021CRL.A/2322/2008

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal and acquitted the appellant. The court held that the conviction was unsustainable because the prosecution failed to produce a forwarding note, sample seal, or label evidence, making the chain of custody regarding the chemical analysis of the seized liquor incomplete and doubtful.

What did the court decide?

The conviction and sentence are set aside. The appellant is acquitted. Bail bond is cancelled, and the fine deposit is refunded.

Vasu 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 DR. JUSTICE KAUSER EDAPPAGATH

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WEDNESDAY, THE 07TH DAY OF APRIL 2021 / 17TH CHAITHRA, 1943

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CRL.A.No.2322 OF 2008

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AGAINST THE ORDER/JUDGMENT IN SC 17/2006 DATED 24-09-2008 OF ADDITIONAL DISTRICT AND SESSIONS (ADHOC) FAST TRACK COURT I, PATHANAMTHITTA

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APPELLANTS:

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VASU AGED 56 YEARS

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S/O.CHATHAN, ANJILIMOOTTIL VADKKETHIL VEEDU,, MANTHUKA MURI, KULANADA VILLAGE,, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT.

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BY ADV. SRI.V.SETHUNATH

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RESPONDENTS:

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

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SRI K B UDAYAKUMAR SR PP

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THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07.04.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A.No.2322 OF 2008 2

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JUDGMENT

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This is an appeal filed u/s 374(2) of the Criminal Procedure Code (Cr.P.C) against the judgment of conviction and sentence passed by the Additional Sessions Judge (Adhoc) Fast Track Court-I, Pathanamthitta in SC No.17/2006 dated 24^th September, 2008.

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The accused/appellant faced trial for an offence committed u/s 8 (1) and (2) of the Abkari Act. The prosecution case in short is that on 28/11/2002 at 9.00 a.m, PW2 Excise Preventive Officer and others while on patrol duty, found the accused coming from the opposite side carrying a sack bundle on his shoulders. When they reached near the Nettoor Bridge in the Kulanada-venmani road and on seeing the excise party, the accused tried to escape and ran away. The accused was intercepted and on inspection of the sack bundle carried by him, a 35 litre white jerry can with certain liquid was found inside. On examination of the liquid by smelling and tasting, it was convinced that the same was arrack. Accordingly, the accused was arrested and the contraband article was seized. From the jerry can, 300ml of liquid was taken as sample in a bottle and the same was sealed and packed in the presence of witness, who was examined as PW3. Thereafter, PW4 Excise Preventive Officer registered Ext.P4 Occurrence Report (OR) against the accused. The accused and the seized articles were produced before the Magistrate court on the same day. The sample was sent for chemical

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CRL.A.No.2322 OF 2008 3

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analysis and after chemical analysis, the chemical analyst's report was received which was marked as Ext.P6. The chemical analysis report shows that the sample contained 31.22% volume of ethyl alcohol. After completing investigation, the Investigating Officer, PW5, filed a final report before the learned Magistrate. The learned Magistrate committed the case for trial to the Court of Sessions.

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The accused appeared before the court below. After hearing both sides, the court below framed charge against the accused under Sections 8(1) and (2) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty.

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The prosecution examined PW1 to PW5 and Exts.P1 to P6 were marked. MO1 and MO2 were identified. On completing the prosecution evidence, the accused was questioned u/s 313 of the Cr.P.C. On the side of the defence, a witnesses was examined as DW1. After trial, the court below found that the accused has committed the offence under Section 8(1) and punishable under Section 8(2) of the Abkari Act. Accordingly, he was convicted for the said offence. The accused was sentenced to undergo rigorous imprisonment for one year and half year and to pay a fine of Rs. 1,00,000/-, in default, to suffer rigorous imprisonment for a further period of six months as per the impugned judgment. The said judgment is under challenge in this appeal.

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Heard the learned counsel for the appellant/accused,

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CRL.A.No.2322 OF 2008 4

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Sri.V.Sethunath as well as the learned Public Prosecutor, Sri.K.B.Udayakumar.

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The learned counsel for the appellant assailed the finding of the guilt passed by the court below against the appellant as illegal and unsustainable mainly on two grounds. The first ground urged by the learned counsel is that the forwarding note for sending the sample for chemical analysis was not produced or marked in evidence. The second ground urged by the learned counsel is that Ext.P1 Mahazar does not contain any sample seal and Ext.P5, the list of 'Thondi' articles, does not show that there was any label on the MO1 can or sample bottle.

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The first and foremost argument advanced by the learned counsel for the appellant is regarding the non production of the forwarding note. The learned counsel submitted that mere production of chemical analysis report, that the sample tested was contraband substance is not a conclusive proof, unless and until the forwarding note is produced. The prosecution has to prove that the very same sample which was drawn from the liquid and was seized from the possession of the accused, ultimately reached the hands of the chemical examiner in a tamper proof condition. In Girish alias Manoj v. State of Kerala [2019 KHC 655], it was has held that in the absence of forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot of

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CRL.A.No.2322 OF 2008 5

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occurrence had reached the chemical examiner for analysis in a tamper proof condition. In Ramachandran v. State of Kerala [2020 ICO 4306], this Court has held that the forwarding note is the link evidence to show that it was the same sample which was drawn from the contraband article and was seized from the accused which eventually reached the hands of the chemical examiner by change of hands in a tamper proof condition and hence, non production of it amounts to doubt in prosecution case. Again, this Court recently in Sadasivan alias para v. State of Kerala and another [2020 KHC 478] has held that the non production of the forwarding note is fatal to the prosecution case and that itself can be a ground for acquitting the accused. In this case, no forwarding note has been produced or marked in evidence.

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The forwarding note is expected to contain the specimen impression of the seal which was used for sealing the sample bottle. In the absence of the forwarding note admitted in evidence, it cannot be said that the prosecution has proved beyond reasonable doubt that the very same sample taken at the spot which reached the chemical examiner for analysis was in tamper proof condition.

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Ext.P1 does not bear any specimen sample seal. Specimen has also not been separately produced. There is a specific recital in Ext.P1 that PW2 Excise Inspector took sample of the liquid from the can and sealed the sample bottle and the can containing the residue

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CRL.A.No.2322 OF 2008 6

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and affixed label, bearing the signature and the signature of the witnesses, on the can and the sample bottle. Ext.P5 is the list of the 'Thondi' articles prepared by PW2 for producing the material objects before the court. The description of the can and the sample bottle given in Ext.P5, the list of 'Thondi' articles, does not show that there was any label on the MO1 can or the sample bottle. Therefore, it is difficult to conclude that the very same sample which was allegedly drawn by PW2 at the spot of occurrence was produced before the court without any tampering.

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The aforesaid vital aspects which cut root of the prosecution case were not taken into consideration by the court below while appreciating the prosecution evidence. In these circumstances, I hold that the conviction and sentence passed by court below cannot be sustained.

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In the result, the appeal is allowed. The conviction and sentence passed by the court below are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. The deposit made by the accused towards the fine amount imposed shall be refunded.

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DR. KAUSER EDAPPAGATH

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RPS

Vasu v. State of Kerala

Case brief

What is this about?

What did the court decide?

Vasu v. State of Kerala

Case brief

What is this about?

What did the court decide?

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