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2021 Supreme(Online)(KER) 25537
HIGH COURT OF KERALA
GOPINATH P, J
REGHUNADHAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/2158/2006
SRI.K.P.SUJESH KUMAR, SRI.K.P.SUJESHKUMAR
The integrity of evidence must be established through proper documentation and procedures to support a conviction under the Abkari Act.
Headnote:
Evidence - Criminal Law - Abkari Act - Section 55(g) - The court found that the prosecution failed to establish a crucial link in the evidence due to the absence of a forwarding note and the seal description, resulting in a failure to prove the contraband's integrity.
Fact of the Case:
The appellants were charged under the Abkari Act for possession of contraband during a raid. The prosecution failed to link the seized items with the chemical analysis report due to missing evidence and lack of sealing description in the seizure mahazar.
Finding of the Court:
The court determined that the prosecution's failure to produce the forwarding note and provide seal details in the seizure mahazar was critical and fatal to the case, leading to the conclusion that the integrity of the evidence was not proven.
Issues: Whether the prosecution established the integrity of the contraband samples through adequate evidence linking them to chemical analysis.
Ratio Decidendi: The court held that without a forwarding note and proper sealing documentation, the evidence linking the contraband to the chemical analysis was insufficient to support a conviction.
Final Decision: The appellants are acquitted of all charges.
JUDGMENT
This appeal has been filed challenging the conviction and sentence imposed on the appellants/accused 1 and 2 in S.C.No.852 of 2000 on the file of the Additional Sessions Judge (Abkari), Kottarakkara in a prosecution under Section 55 (g) of the Abkari Act .
2. The gist of the prosecution case is that on 26.8.1998, at about 9.10 P.M., the appellants/accused 1 and 2 were found in possession of about 1000 litres of wash and making arrangements for manufacture of the arrack with implements by the side of a thodu on the eastern side of Plakkadu Siva temple.
3. Following investigation, a final report was laid before the Judicial First Class Magistrate Court – I, Kottarakkara. The matter was committed to the Sessions Court, Kollam. It was made over to the Assistant Sessions Court, Kottarakkara where a charge was framed under Section 55 (g) of the Abkari Act . The case was again transferred to the Additional Sessions Judge (Abkari), Kottarakkara. Since the accused had already entered the plea of not guilty, the prosecution led evidence by examining PWs 1 to 4, marking Exhibits P1 to P6 and identifying and marking material objects 1 to 4.
4. On closure of the prosecution evidence, the appellants/
accused were questioned under Section 313 Cr.P.C. and they denied all the incriminating circumstances against them. No defence evidence was however adduced.
5. The learned counsel for the appellants would submit that this appeal is liable to be allowed and appellants/accused 1 and 2 acquitted on a short point and without considering any other issue raised in the appeal. He submits that this is a case where the seizure mahazar does not indicate the nature of the seal used in marking the samples and sealing the contraband items and further on account of the fact that the forwarding note through which the samples were forwarded for chemical analysis was not produced or marked in court.
6. Having perused the records, I am convinced that the learned counsel for the appellants is right in contending that the seizure mahazar does not describe or provide a sample of the seal affixed on the contraband and on the sample taken for the purpose of chemical examination. Still further, records also show that the prosecution failed to produce and mark the forwarding note which is a crucial piece of evidence to link the alleged contraband seized from the appellants/accused with the chemical analysis report. In the absence of marking of the forwarding note, there is no evidence to establish that the alleged contraband seized from the appellants/accused 1 and 2 was actually the material shown in the chemical analysis report.
7. This Court considered an identical question inGireesh v. State of Kerala [ 2019 (4) KLT 79 ], where in paragraphs 14 and
15, held as follows:-
“14. There is another lacuna in the prosecution case. The copy of the forwarding note prepared by P.W.5 for sending the samples for chemical analysis was not marked in evidence. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the samples. In the absence of the forwarding note marked in evidence, it cannot be found that the prosecution has proved beyond reasonable doubt that the very same samples taken at the spot of the occurrence had reached the chemical examiner for analysis in a tamper proof condition (See Prakasan v. State of Kerala ( 2016 (1) KLT SN 89 (C.No.96)=2016 (1) KLD 311) and Gopalan v. State of Kerala(2016 (3) KLT SN 24(C.No.16)=2016(2)KLD
469).
15. When the prosecution relies upon report of chemical analysis in respect of the samples sent for analysis to prove the offence alleged against the accused, it can succeed only if it is shown that the liquid which was examined by the chemical examiner was the very same sample drawn from the liquid seized. The prosecution has to prove all the links starting from the seizure of the samples till the same reached the hands of the chemical examiner.”
In the light of the law la
