Abhilash v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 29[TH] DAY OF MAY 2024 / 8TH JYAISHTA, 1946 CRL.A NO. 1397 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 22.07.2011 IN SC NO.99 OF 2010 OF THE ADDITIONAL SESSIONS COURT (ADHOC) III, PALAKKAD ARISING OUT OF THE CP NO.114 OF 2008 OF JUDICIAL MAGISTRATE OF FIRST CLASS-I, OTTAPPALAM ``` ## **`APPELLANT/ACCUSED NO.1:`** ``` ABHILASH, AGED 34 YEARS, S/O RAMAN, KUNDIL VEEDU, MANJAKKAL, NELLAYA, OTTAPPALAM TALUK, PALAKKAD. ``` ``` BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV. SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1397 of 2011 2 ## . **K.BABU, J** ----------------------------------------- ## Crl.A.No.1397 of 2011 ------------------------------------------- Dated this the 29[th] day of May, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 22.07.2011, passed by the Additional Sessions Court-III (Fast Track, Adhoc), Palakkad in Sessions Case No.99 of 2010, accused No.1 has preferred this appeal. Accused No.2 was acquitted and the appellant/accused No.1 was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.01.2007 at 10.20 a.m., accused No.1 was found in possession of about 7 litres of arrack at Beevipadi in violation of the provisions of the Abkari Act. Accused No.2 had entrusted the arrack for sale with accused No.1. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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 Crl.A.No.1397 of 2011 3 the accused charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. They pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P9, and MOs 1 to 3. 5. After the closure of the evidence on behalf of the prosecution, the 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 accused No.1 guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard the learned counsel appearing for the appellant/accused No.1 and the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused No.1 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the Crl.A.No.1397 of 2011 4 contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant/accused No.1 relied on the following circumstances to establish his contentions:- (i) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) Though the sample was forwarded to the laboratory on 16.05.2008, it reached the laboratory only on 20.05.2008. There is no satisfactory explanation regarding the custody of the bottles containing the samples, during the interregnum from 16.05.2008 to 20.05.2008. (iii) The various officials who handled the sample during its transit from the Court to the Laboratory were not examined. 9. The alleged seizure was effected on 25.01.2007. The detecting officer had prepared Ext.P1 seizure mahazar at the Crl.A.No.1397 of 2011 5 scene of occurrence to evidence seizure. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the samples. The detecting officer has not given evidence as to the nature of the seal used. There is no evidence to show that the specimen of the seal was produced before the Court at the time of production of sample to ensure its genuineness. 10. The prosecution has not given any evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 16.05.2008 of the Judicial First Class Magistrate Court, Ottapalam. Ext.P8 further shows that the bottles containing the samples reached the laboratory only on 20.05.2008 through the Police Constable No.3755. The sample remained in the custody of the Property Clerk of the Court from 25.01.2007 to 16.05.2008. The custody of the sample during the period from 16.05.2008 to 20.05.2008 has not been satisfactorily explained. Neither the Property Clerk of the Court nor the Police Constable who delivered the sample to the laboratory was examined by Crl.A.No.1397 of 2011 6 the prosecution to rule out the possibility of the sample being changed or tampered with. 11. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 12. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 13. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , this Court had occasion to elucidate on the legal obligation cast on the prosecution to prove that the sample allegedly seized from the accused eventually reached the hands of the Chemical Examiner in a tamper-proof condition. Relying on **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314),** in **Sasidharan (supra),** this Court held that where sample changed several hands before reaching the Chemical Examiner, the prosecution Crl.A.No.1397 of 2011 7 had to necessarily examine the various officials who handled the sample to prove that while in their custody the seals on the sample have not been tampered with. In **Sathi v. State of Kerala (2007 (1) ILR 718 (Ker.))** , this Court re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc. of the contraband to be sent for Chemical Examination. In **Sathi (supra)** , this Court further held that Courts could presume that an official act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 114(e) of the Evidence Act has no application in circumstances where official acts are not shown to be performed properly. The ratio in **Sasidharan (supra)** and **Sathi (supra)** has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . 14. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. Crl.A.No.1397 of 2011 8 15. 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 sample, no evidentiary value can be attached to the chemical analysis report. 17. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 18. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 19. The prosecution has not succeeded in establishing that the contraband seized at the scene of occurrence Crl.A.No.1397 of 2011 9 eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P8, Certificate of Chemical Anaysis has no evidentiary value. 20. In the instant case, the prosecution failed to establish the link connecting accused No.1 with the contraband seized and the sample analysed in the laboratory. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the appellant/accused No.1 is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK