Anandan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 5[TH] DAY OF JANUARY 2023 / 15TH POUSHA, 1944 ``` ``` CRL.A NO. 2164 OF 2006 ``` ``` AGAINST THE JUDGMENT SC 1128/2003 OF ASSISTANT SESSIONS COURT, ``` ``` KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` ANANDAN, S/O.KESAVAN,ANANDA BHAVANAM VEEDU, EDAKKADU MURI, PORUVAZHY VILLAGE, KUNNATHUR TALUK, KOLLAM. ``` ``` BY ADV SRI.JOHNSON GOMEZ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` THE STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, SASTHAMCOTTA EXCISE RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV. SMT.REKHA S., GP SRI.RAJESH A., SP GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.2164 of 2006 2 ## . **K.BABU, J** ----------------------------------------- ## Crl.A.No.2164 of 2006 ------------------------------------------- Dated this the 5[th] day of January, 2023 ## **JUDGMENT** Aggrieved by the judgment dated 29.08.2006, passed by the Assistant Sessions Court, Kollam in Sessions Case No.1128/2003 the accused has preferred this appeal. The appellant/accused 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 05.01.1998 at about 5.30 p.m., the accused was found in possession of 4 litres of arrack at Kunnathoor, 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 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 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. Crl.A.No.2164 of 2006 3 4. The prosecution examined PWs 1 and 6 and proved Exts. P1 to P4 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Johnson Gomez, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the ground that the petitioner failed to establish that the contraband substance allegedly seized from the place 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) Ext.P1 seizure mahazar does not contain Crl.A.No.2164 of 2006 4 the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The specimen of the seal used by the detecting officer was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory. (iii) Various officials who were handled the sampled during its transit from the Court to the Laboratory were not examined. 9. The alleged seizure was effected on 05.01.1998. The detecting officer had prepared Ext.P1 seizure mahazar at the 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 bottle containing the sample. 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 the genuineness of the sample produced. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification. 10. The prosecution has not given evidence as to the date Crl.A.No.2164 of 2006 5 on which the sample was forwarded to the laboratory. Ext.P4 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 10.06.1998 of the Judicial First Class Magistrate Court, Sasthamcotta. Ext.P4 further shows that the bottle containing the sample reached the laboratory only on 11.06.1998 through an Excise Guard by name Baby John. The sample remained in the custody of the Property Clerk till 10.06.1998. The sample was received by the Excise Guard concerned from the Court on 10.06.1998. Neither the Property Clerk of the Court nor the Excise Guard who delivered the sample to the laboratory was examined by the prosecution. The forwarding note/requisition for sending sample was not produced and marked. 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 Crl.A.No.2164 of 2006 6 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 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 Crl.A.No.2164 of 2006 7 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. 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 Crl.A.No.2164 of 2006 8 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 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 eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P4, Certificate of Chemical Anaysis has no evidentiary value. 20. In the instant case, the prosecution failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The conviction and Crl.A.No.2164 of 2006 9 sentence recorded by the trial Court cannot be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK