failure to describe the seal or affix the sample of the seal on the seizure mahazer

Gopakumar vs State Of Kerala on 5 October, 2021
                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
                  THE HONOURABLE MR. JUSTICE GOPINATH P.
      TUESDAY, THE 5TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943
                          CRL.A NO. 1077 OF 2007
 AGAINST THE JUDGMENT DATED 30-05-2007 IN SC 5/2002 OF SPECIAL COURT
             FOR ABKARI ACT CASES, KOTTARAKKARA, KOLLAM

APPELLANT/ACCUSED:

           GOPAKUMAR
           ANIL VILASAM VEEDU, OTTAKKAL,
           THONMALA MURI AND VILLAGE.

           BY ADV SUNNY XAVIER



RESPONDENT/COMPLAINANT:

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

           BY ADV PUBLIC PROSECUTOR



OTHER PRESENT:

           SRI SANGEETH RAJ (PP)


     THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 Crl. Appeal No.1077/2007                   -2-

                                 JUDGMENT
This appeal has been filed challenging the conviction and sentence imposed on the appellant/accused in S.C. No.5/2002 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara in a prosecution under Sections 55 (b) & (g) of the Abkari Act.

2. The gist of the prosecution case is that on 05-03-2000 at about 12.oo noon the appellant/accused was found in possession of 575 litres of wash in 3 barrels and engaged in the distillation of arrack and sale of the same. It is alleged by the aforesaid act the appellant/accused committed offences under the aforesaid provisions of the Abkari Act. Following investigation of the case a final report was filed before the Judicial First Class Magistrate Court-I, Punalur from where it was committed to the Sessions Court as the offence was exclusively triable by a Court of Session. The matter was originally made over to the Assistant Sessions Court, Kottarakkara from where it was transferred to the Additional Sessions Judge (Abkari Cases) Kottarakkara for the purpose of trial and disposal. Charges were framed by that court against the appellant/accused under Section 55 (a), (b) & (g) of the Abkari Act. The appellant/accused pleaded not guilty. The prosecution led evidence by examining PWs 1 to 5 and marking Exts.P1 to P6 documents and identifying M.Os 1 to 5 series. On closure of evidence the appellant/accused was questioned under Section 313 Cr.P.C. He denied all incriminating evidence appearing against him. Since there were no circumstances warranting acquittal of the appellant/accused under Section 232 Cr. P.C., the appellant accused was called upon to enter his defence evidence. The appellant/accused examined DW1, the owner of a vehicle in which he claimed that he was working as a Driver and also marked two documents, namely registration certificate of the vehicle belonging to DW1 and a copy of his Driving licence. On an analysis of the evidence, the trial court came to the conclusion that the prosecution has succeeded in proving the case against the appellant/accused and therefore convicted him under Section 55 (a), (b) & (g) of the Abkari Act. After hearing the appellant/accused on the question of sentence, the appellant/accused was sentenced to undergo rigorous imprisonment for two years each and pay a fine of Rs.1,00,000/- each and in default of payment of fine to undergo rigorous imprisonment for a further period of 3 months each under Section 55 (a), (b) & (g) of the Abkari Act. Sentences were directed to run concurrently and set off as permissible in law under Section 428 of Cr.P.C was allowed.

3. The learned counsel for the appellant submits that this appeal is to be allowed on a short point. He submits that there is no description or sample of the seal affixed on the samples in Ext.P1 mahazer. He submits that going by the law laid down by this court in Bhaskaran K. v. State of Kerala and another; 2020 KHC 5296 and in Ramachandran v. State of Kerala; 2021 (1) KLT 793, the seizure mahazer must either contained a description of the seal used to seal the samples drawn from the contraband seized from the appellant/accused or should contain a sample of the seal affixed so that the crucial link between the contraband seized from the appellant/accused and the chemical analysis report is established.

4. I have heard the learned Public Prosecutor also. On a perusal of the records, I am convinced that the learned counsel for the appellant is right in his submission that Ext.P1 mahazer does not contain either the description or the sample of the seal used for sealing the samples drawn from the contraband seized from the appellant/accused on the date of the incident. Exhibit P1 mahazer shows that samples were immediately drawn from the contraband seized. This court in Bhaskaran (supra) held as follows:-

21. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court (See Achuthan v. State of Kerala: 2016 (1) KLD 391: ILR 2016(2) Ker 145). A comparison of the specimen of the seal of the Court provided in the forwarding note with the seal affixed on the sample bottle will not give any assurance that the sample of the contraband allegedly seized from the accused had reached the chemical examiner for analysis in a tamper proof condition. Such an assurance is possible only when the specimen of the seal affixed on the sample is provided to the chemical examiner for comparison (See Majeedkutty v. Excise Inspector: 2015 (1) KHC 424). When the specimen of the seal affixed on the sample bottle 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 sample bottle, no evidentiary value can be given to the chemical analysis report and it cannot be found that the very same sample which was drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner without any tampering (See Rajamma v. State of Kerala : 2014 (1) KLT 506).
22. xxx xxx xxx
23. It is not the case of the prosecution that there was no other officer available to conduct the investigation. It is also not the case of the prosecution that for some other reason PW5 was compelled to conduct the entire investigation and to file final report against the accused. It is a case in which, without any exigencies of the situation, the detecting officer who registered the case himself conducted the entire investigation and filed final report. In view of the infirmities pointed out earlier with regard to the arrest of the accused and the steps taken for forwarding the sample for analysis, the one man show conducted by PW5 has definitely caused prejudice to the accused.
The failure to describe the seal or affix the sample of the seal on the seizure mahazer results in snapping of the crucial link between the contraband seized from the appellant/accused and the chemical analysis report. In the light of the law laid down by this court in Bhaskaran (supra) and Ramachandran (supra) this appeal is liable to be allowed.

In the result this appeal is allowed. The conviction and sentence imposed on the appellant/accused in S.C. No.5/2002 on the file of the Additional Sessions Judge (Abkari Cases), Kottarakkara is set aside. The appellant/accused will stand acquitted.

Sd/-

GOPINATH P.

JUDGE AMG