Allowed

Thulaseedharan and Another v. State of Kerala and Another

Kerala HC22 Nov 2022CRL.A/2506/2007

Case brief

AI extract

What is this about?

The High Court allowed the appeal and acquitted the appellants. The court held that the sample drawing by a court officer lacked legal sanction per Baburaj, the seal specimen was not produced, and the contraband was not subjected to proper chemical analysis, barring the court from attaching evidentiary value to the reports and absolving the accused.

What did the court decide?

The appellants were acquitted of the alleged offences and set at liberty.

Thulaseedharan and Another Vs State of Kerala and… — Criminal Trial and Appeal | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE K. BABU

¶4

TUESDAY, THE 22^ND DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944

¶5

CRL.A NO. 2506 OF 2007

¶6

AGAINST THE ORDER OF CONVICTION IN SC 93/2002 OF SPECIAL COURT FOR

¶7

ABKARI ACT CASES, KOTTARAKKARA

¶8

APPELLANTS/ACCUSED NOS 1 AND 2:

¶9

1 THULASEEDHARAN AND ANOTHER KALLUVILA VEEDU, CHAKKUVARACKAL MURI,, CHAKKUVARAKKAL VILLAGE, KOTTARAKKARA TALUK.

¶10

2 JAMES SO.KUNJUKUNJU KAVALAYIL, KALLUVILA VEEDU,, KOTTAVATTOM MURI. BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL

¶11

RESPONDENTS/ COMPLAINANT AND STATE:

¶12

1 STATE OF KERALA AND ANOTHER PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.

¶13

2 EXCISE INSPECTOR KOTTARAKKARA EXCISE RANGE.

¶14

REKHA – GOVERNMENT PLEADER

¶15

THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON

¶16

22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

Crl.Appl No.2506 of 2007

¶18

¶19

K.BABU, J.

¶20

Crl.A No.2506 of 2007

¶21

Dated this the 22^nd day of November, 2022

¶22

JUDGMENT

¶23

Aggrieved by the judgment dated 11.12.2007, passed by the Additional Sessions Court (Abkari cases), Kottarakkara, in Sessions Case No.93/2002, the two accused have preferred this appeal. The appellants/accused were convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each.

¶24

The prosecution case is that on 14.04.1998 at 1.30 pm., the accused were found in possession of 3 litres of arrack in a jerry can and 500ml arrack in a plastic bottle in a rubber plantation owned by Achankunju, at Kumarampetty, Kottarakkara in violation of the provisions of the Abkari Act.

¶25

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 charges were framed against them for the offences punishable under Sections 55(a) and

¶26

Crl.Appl No.2506 of 2007

¶27

¶28

55(i) 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 offences.

¶29

The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MOs 1 to 3. Exhibit X1 was marked as Court Exhibit.

¶30

After the closure of the evidence on behalf of the prosecution, 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 Sections 55 (a) and 55(i) of the Abkari Act and convicted them thereunder.

¶31

Heard Sri.Vinoy Varghese, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent.

¶32

The judgment of conviction and sentence is challenged on the following grounds:-

¶33

(a) The act of drawing sample by an official of the Court has no sanction of law.

¶34

Crl.Appl No.2506 of 2007 4

¶35

(b) The prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory.

¶36

The alleged seizure was effected by a preventive officer (PW1) attached to the Excise Range Office, Kottarakkara. The Excise team led by PW1 seized a can containing 3litres of arrack and a plastic bottle containing 500ml of arrack from the place of occurrence. No sample was drawn from the place of occurrence.

¶37

PW5, an officer of the Court had drawn the sample in 2 bottles from the bulk quantity produced before the Court. The legality of the procedure in which sample was drawn by an officer of the Court was considered by this Court in Baburaj v. State of Kerala

¶38

{2021 (6) KLT 416}. In Baburaj (supra) this Court held thus:-

¶39

“35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water- tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal

¶40

Crl.Appl No.2506 of 2007

¶41

¶42

jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala (2019 (2) KLT 974) , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala (2020 (2) KLT 590) , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory.

¶43

The course adopted by the learned Magistrate undertaking the act of enuinenesstaking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.”

¶44

10. In Baburaj v. State of Kerala (Supra) , this Court further

¶45

held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn.

¶46

In the present case it is interesting that PW5, the officer of the Court who had drawn sample was not authorised by anybody to take sample. On Cross- Examination, he admitted that he was not the property clerk of the Court and that he was not even in the custody of

¶47

¶48

Crl.Appl No.2506 of 2007

¶49

the contraband produced before the Court. The resultant conclusion is that the genuineness of the sample drawn by PW5 is doubtful.

¶50

The genuineness of the contraband produced before the

¶51

Court is also under challenge on the ground that the specimen impression of the seal stated to have been affixed by the detecting officer was not produced before the Court. He has not given evidence as to the nature of the seal used. The specimen impression of the seal used by the detecting officer is essential to enable the Court to ascertain the genuineness of the contraband produced before the Court. {Vide: Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. State of Kerala [2016(1) KLD 391], Krishnadas v. State of Kerala (2019 KHC 191) }.

¶52

It is also to be noted that there is nothing on record to show that specimen of the seal used by the officer of the Court who had drawn the sample was forwarded to the analyst for comparison. The forwarding note which contains the specimen impression of the seal used was not produced and marked.

¶53

In Rajamma v. State of Kerala (2014 (1) KLT 506), this Court held that if the specimen of the seal affixed on the bottle containing the sample 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

¶54

¶55

Crl.Appl No.2506 of 2007

¶56

sample, no evidentiary value can be attached to the Chemical Analysis Report.

¶57

In the instant case, the prosecution failed to show that the contraband seized from the scene was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore Ext.P8 Certificate of Chemical Analysis has no evidentiary value.

¶58

The upshot of the above discussion is that the prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, the accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above.

¶59

The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offences alleged. They are set at liberty.

¶60

The appeal is allowed as above.

¶61

Sd/-

¶62

K.BABU JUDGE

¶63

Thulaseedharan and Another v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

Thulaseedharan and Another v. State of Kerala and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

Case details

Similar cases

Biju Vs State of Kerala

Jithesh Vs State of Kerala

Manu M Vs State of Kerala

Sandeep Vs State of Kerala

Ajith K. Thankachan Vs State of Kerala

Sahanadan Vs State of Kerala