Aji S/o Uthaman and Maheswaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** **CRL.A NO. 2226 OF 2008** **AGAINST THE CONVICTION AND SENTENCE VIDE JUDGMENT DATED 6/9/2008 IN** **S.C.NO.495/2006 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FAST TRACK COURT** **NO.II, ALAPPUZHA** ## **APPELLANTS/ACCUSED 1 & 2:** **1 AJI S/O UTHAMAN, AGED 32 YEARS, ERUMOOTTI PUTHUVAL VEEDU, CHEKKIDIKKADU MURI, THAKAZHY VILLAGE, KUTTANADU TALUK.** **2 MAHESWARAN, S/O.DAMODARAN AGED 39 YEARS, ERUMOOTTIL PUTHUVAL VEEDU, CHEKKIDIKKADU MURI, THAKAZHY VILLAGE, KUTTANADU TALUK. BY ADV G.PRIYADARSAN THAMPI** ## **RESPONDENT/COMPLAINANT & STATE:** **STATE OF KERALA REP.BY EXCISE INSPECTOR, KUTTANADU, THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.2226 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 23[rd] day of May, 2022`** ``` This appeal is directed against the judgment dated 06.09.2008 in S.C.No.495/2006 on the file of the Additional Sessions Court (Fast Track Court–II), Alappuzha, which arose from Crime No.47 of 2003 of Kuttanad Excise Range. The appellants are accused Nos. 1 and 2 in the crime. ``` ``` 2. By the impugned judgment, the appellants were convicted for the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of three years each and pay a fine of Rs.1,00,000/- each. ``` ``` 3. The prosecution case is that on 09.12.2003, at 11.30 p.m., the accused were found in possession of 16 litres of arrack in two Cans and 195 litres of wash in three Cans and an aluminum pot along with other implements for distilling arrack in a shed at Kuttanadu in Thakazhy Village. ``` ``` 4.After completing the investigation, final report ``` **CRL.A.No.2226 of 2008** **3** ``` was submitted against the appellants for the offence punishable under Sections 8(2), 55(b) and 55(g) 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(b) and 55(g) 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. ``` ``` 5.The prosecution examined PWs1 to 6 and proved Exts.P1 to P7 and MOs 1 to 12. ``` ``` 6.After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C were recorded. They pleaded total 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, convicted ``` **CRL.A.No.2226 of 2008** **4** ``` the appellants/accused for the aforesaid offences. ``` `7. Heard Sri.G.Priyadarshan Thampi, the learned` `counsel for the appellants/accused and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent.` `8. The learned counsel for the appellants` `challenged the impugned judgment on the following grounds:-` - `(a) No specimen seal was produced before the Court to ensure that the contraband substance` - `recovered from the possession of the accused eventually reached the Court.` - `(b) No forwarding note/requisition for sending sample to the laboratory was prepared and forwarded to the Chemical Examiner's Laboratory.` - `(c) The prosecution failed to give evidence as to the name of the Excise official with whom the sample was forwarded to the laboratory.` `9. PW3, the Circle Inspector of Alappuzha Excise` **CRL.A.No.2226 of 2008** **5** ``` Enforcement and Anti Narcotic Squad detected the offence. On 09.12.2003, at 11.30 p.m., the Excise team led by PW3 reached the place of occurrence and found accused No.1 collecting arrack through a rubber tube in MO6 can. Accused No.2 was found collecting water in MO2 aluminum vessel. The Excise team led by PW3 recovered 195 litres of wash and 16 litres of illicit arrack from the place of occurrence. PW3 recovered implements used by the accused for distilling illicit arrack. They were arrested from the scene of occurrence. PW3 prepared Ext.P1 seizure mahazar to evidence search and seizure. PW4, the Excise official, who had accompanied PW3 supported the prosecution version. PW6, the Excise Range Inspector, Kuttanad, conducted investigation and submitted final report. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample allegedly drawn from the scene of occurrence. There is nothing to show that the specimen impression of the seal was prepared and produced before the Court and forwarded to the Chemical ``` **CRL.A.No.2226 of 2008** **6** ``` Examiner's laboratory. PW3, the detecting officer has not given evidence as to the nature and description of the seal stated to have been affixed on the bottle containing the sample. ``` ``` 10. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been mentioned either in the seizure mahazar or in any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note was prepared and forwarded to the Chemical Examiner’s laboratory. ``` ``` 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 ``` **CRL.A.No.2226 of 2008** **7** ## `Examiner's laboratory.` ``` 12. A legal obligation is cast on the prosecution to prove that it was 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 the contraband 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 had to necessarily examine the various officials who handled the sample to prove that while in their custody the ``` **CRL.A.No.2226 of 2008** **8** ``` 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 ``` **CRL.A.No.2226 of 2008** **9** ``` genuineness of the sample produced in the Court. ``` ``` 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. ``` ``` 16. In Ramachandran v. State of Kerala [2021 ``` ``` (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. ``` ``` 17. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Court held that mere production of a ``` **CRL.A.No.2226 of 2008** **10** ``` 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. ``` ``` 18. A survey of the precedents on the subject leads to the conclusion that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. (Baburaj v. State of Kerala [2021 (6) KLT 416]). ``` ``` 19. In the instant case, this Court noticed the following deficiencies in the prosecution evidence:- ``` - `(a) The nature and description of the seal stated to have been affixed on the bottle containing the sample has not come out in evidence.` - `(b) No specimen seal was produced before the Court and forwarded to the Chemical Examiner's laboratory.` **CRL.A.No.2226 of 2008** **11** - `(c) The sample changed several hands before reaching the laboratory. All the officials who` ``` handled the sample during its transit from the place of seizure to the laboratory were not examined by the prosecution. ``` - `(d) The prosecution failed to ascertain the name of the official with whom the sample was` ``` forwarded to the laboratory. ``` - `(e) There is no clarity as to the date on which the sample was forwarded to the laboratory` ``` from the Court. ``` ``` 20. The resultant conclusion is that Ext.P7 Certificate of Chemical Analysis has no evidentiary value to connect the appellants with the crime alleged. ``` ``` 21. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellants/accused are entitled ``` ``` 22. The upshot of the above discussion is that the ``` **CRL.A.No.2226 of 2008** **12** ``` conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellants/accused are therefore, not guilty of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. They are acquitted of the offences. They are set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/23/05/2022 ```