ANIL KUMAR @ RAMESHAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 ``` ``` CRL.A NO. 2339 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 13.10.2009 IN SC NO.128 OF 2007 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)III, ``` # **`PATHANAMTHITTA`** ## **`APPELLANT/ACCUSED:`** ``` ANIL KUMAR @ RAMESHAN, S/O. NARAYANA PILLAI, ARYA BHAVAN, KURAMPALA SOUTH MURI, KURUMPALA VILLAGE, ADOOR TALUK, PATHANAMTHITA DISTRICT ``` ``` BY ADV SRI.C.B.SREEKUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, ADOOR EXCISE RANGE, REPRESENTED THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2339 of 2009 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 2339 of 2009 --------------------------------------------Dated this the 22[th] day of May, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 13.10.2009, passed by the Additional District and Sessions Court (Adhoc) Fast Track Court-III, Pathanamthitta in S.C.No. 128/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one and half years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.10.2002 at 11.30. am, the accused was found in possession of 4 litres of arrack in a white jerry can at Parayantayyam junction 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 ``` Crl.A.No.2339 of 2009 ``` ``` 3 ``` 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 7 and proved Exts.P1 to P8, MO.1. 5. After the closure of 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 the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the ``` Crl.A.No.2339 of 2009 ``` ``` 4 ``` Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i) Ext.P2 mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The prosecution failed to explain the custody of the contraband during the interregnum from 20.11.2002 to 28.11.2002. 9. The alleged seizure was effected on 07.10.2002. The detecting officer had prepared Ext.P2 seizure mahazar at the scene of occurrence to evidence seizure. Ext.P2 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 its genuineness. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification. ``` Crl.A.No.2339 of 2009 ``` ``` 5 ``` 10. 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. 11. 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. 12. Ext.P7 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 20.11.2002 of the Judicial First Class Magistrate Court, Adoor. Ext.P7 further shows that the bottle containing the sample reached the laboratory only on 28.11.2002 through an Excise Guard by name R.Divakaran. The custody of the sample during the interregnum from 20.11.2002 to 28.11.2002 has not been satisfactorily explained. 13. While dealing with a similar fact situation, this Court in ``` Crl.A.No.2339 of 2009 ``` ``` 6 ``` ## **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. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 15. In the absence of any explanation regarding the custody of the sample during interregnum from 20.11.2002 to 28.11.2002, it can be concluded that the prosecution failed rule out the possibility of the sample being changed or tampered with. 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 ``` Crl.A.No.2339 of 2009 ``` ``` 7 ``` 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. 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. 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.P7, Certificate of Chemical Anaysis has no evidentiary value. 19. 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. 20. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital ``` Crl.A.No.2339 of 2009 ``` ``` 8 ``` aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK