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2021 Supreme(Online)(KER) 41663
HIGH COURT OF KERALA
T. R. Ravi, J
VIJAYAKUMAR – Appellant
Versus
THE STATE OF KERALA – Respondent
CRL.A/1982/2006
SRI.R.T.PRADEEP SRI.V.VIJULAL, SMT. S.L. SYLAJA
Failure to prove the integrity of sample evidence in drug-related prosecutions can lead to acquittal.
Headnote:
Abkari - Offences - Abkari Act - Section 58 - Prosecution failure to prove authenticity of sample and evidence leads to acquittal.
Fact of the Case:
The appellant was accused of selling arrack and found guilty under Section 58 of the Abkari Act. The police seized the contraband and charged him based on evidence gathered during a police patrol.
Finding of the Court:
The court found that the prosecution failed to produce critical evidence such as the forwarding note and arrest memo, creating reasonable doubt regarding the integrity of the sample collected for analysis.
Issues: The key issue revolved around the lack of evidence supporting the proper collection and handling of the contraband sample, crucial for establishing guilt under the Abkari Act.
Ratio Decidendi: The court held that without proper documentation and evidence of sample collection, the prosecution could not prove its case beyond a reasonable doubt.
Final Decision: The judgment of the lower court was set aside, and the appellant was acquitted and set at liberty.
JUDGMENT
Dated this the 25th day of March, 2021 The accused in SC.No.62/2001 on the file of the Court of the Additional Sessions Judge for the trial of Abkari Act Cases, Neyyattinkara, has filed this appeal, being aggrieved by the judgment dated 20.09.2006 whereby the appellant was found guilty of offence under Section 58 of the and sentenced to undergo rigorous imprisonment for a period of three years and to pay of fine of Rs. 1,00,000/- (one lakh) and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months.
2. The case of the prosecution is that the Sub Inspector of Police, Vellarada Police Station, on 6.11.1999 at about 5 pm, while on patrol duty got information that arrack is being sold in an incomplete shop building belonging to one Nadesa Panicker. He proceeded to the spot and found the accused engaged in sale of arrack. It is stated that two cans, one of 10 litre capacity filled with arrack and another of 5 litre capacity filled with 4 litres of arrack found in the possession of the accused. The contraband was seized. It is the specific case that the entire contraband articles were produced before the Court on 8.11.1999 since
7.11.1999 was a Sunday.
3. Exts.P1 to P6 were marked on the side of the prosecution and PW1 to PW5 were examined. On the basis of the evidence on record the court below found the accused guilty and imposed the sentence referred above.
4. Heard Sri R.T.Pradeep on behalf of the appellant and Smt.S.L.Sylaja, learned Public Prosecutor on behalf of the State.
5. The counsel for the appellant contended that the prosecution case has to fail for the sole reason that the forwarding note was not produced and marked in evidence. Apart from that he also contends that no arrest memo has been produced, even though the specific case of the prosecution is that the accused was arrested at the scene of occurrence of the offence. Another contention that is taken is that there is no evidence regarding the manner in which the sample was taken and how it was forwarded to the Chemical Examiner, particularly since the sample has been taken from the court. I find considerable force in the submissions made by the counsel for the appellant.
6. This Court has in several decisions held that the failure to produce and mark the forwarding note would lead to a situation where it cannot be held that the prosecution has proved beyond reasonable doubt that the very same sample which was taken at the spot of occurrence had reached the Chemical Examiner for analysis in a tamper proof condition. (see Unnikrishnan Nair v. State of Kerala [ 2020 (3) KHC 455 ];
Sadasivan @ Para v. State of Kerala [ 2020 KHC 478 ].
7. In the judgment inBaby v. State of Kerala, reported in [ 2020 KLT 590 ], this Court had held that the drawing of the sample is to be done by the Investigating Officer and not by the court. This Court has held that the role of the court is only after the final report is filed before the Court and the pre-trial steps. Reference is made to Sections 50 and 50(a) of the Abkari Act which provide that the Abkari Officer, after completion of the investigation, shall forward a report in accordance with sub- section (2) of Section 173 of the Code of Criminal Procedure, to a Magistrate empowered to take cognizance and that on receipt of such final report, the Magistrate shall inquire into such offence and commit to the Court of Sessions, if the offence is exclusively triable by the said court. This Court in the above decision held that the court has absolutely no role at the stage of investigation and if the court finds that thondi articles are produced without drawing the sample, what is appropriate is to return the same to the Investigating Officer for the purpose of taking of sample. 8. In the case on hand, it is seen that PW5 who was the Thondi Clerk at the relevant point of time was examined to state about the collection of the sample. PW5 has stated that she had taken the sample on orders
