A.K. Jose v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** **CRL.A NO. 895 OF 2009** **AGAINST THE JUDGMENT DATED 07.04.2009 IN SC NO.432 OF 2008 OF** **ADDITIONAL SEESIONS COURT, FAST TRACK COURT-II, PALAKKAD** **APPELLANT/ACCUSED:** **A.K.JOSE, S/O KURYAN, ALAPPOATTU VEEDU, PULLUNDASSERI, KADAMPAZHIPURAM VILLAGE, OTTAPPALAM TALUK, PALAKKAD (DT). BY ADVS. SRI.M.B.PRAJITH SRI.SURAJ.S** ## **RESPONDENT/RESPONDENT:** **STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.895 of 2009 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.895 of 2009 --------------------------------------Dated this the 23[rd] day of February, 2024 ## JUDGMENT Aggrieved by the judgment dated 07.04.2009, passed by the Additional Sessions Court, Fast Track-II, Palakkad in S.C No.432/2008, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 27.01.1999 at about 2.00 p.m, the accused was found in possession of 2 1/2 litres of illicit arrack in a plastic can at Pullundasseri Desom in Ottapalam Taluk, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.895 of 2009 3 made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P11 and MO1. 5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri.M.B.Prajith, the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.895 of 2009 4 judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized at the scene of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) Exhibit P4 seizure mahazar does not - contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) The various officials who handled the sample during its transit from the Court - to the laboratory were not examined by the prosecution. - (iii) The prosecution has not given any explanation for the custody of the sample - during the interregnum from 27.01.1999 to - 19.11.1999. 9. The alleged seizure was effected on 27.01.1999. The Crl.A No.895 of 2009 5 detecting officer prepared Ext.P4 seizure mahazar. He had drawn sample at the scene of occurrence. Exhibit P4 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. He has not produced the specimen of the seal before the Court. He has not given evidence as to the nature of the seal used. 10. In Bhaskaran K. v. State of Kerala and another (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. 11. Exhibit P11 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 27.01.1999 of the Judicial First Class Magistrate, Ottapalam. The sample was delivered in the laboratory on 19.01.1999 through an Excise Guard by name Sri.Manoj. 12. The sample remained in the custody of the property clerk. There is no evidence on the date on which the sample was Crl.A No.895 of 2009 6 forwarded to the laboratory. In the absence of any evidence the Court has to infer that the sample was forwarded to the laboratory on 27.01.1999, as is evident from Ext.P11. The property clerk of the Court and the Excise Guard, who delivered the sample in the laboratory were not examined by the prosecution. 13. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 14. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] . 15. Therefore, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.895 of 2009 7 16. 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. 17. 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] }. 18. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 19. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital Crl.A No.895 of 2009 8 aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS