Anil Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 CRL.A NO. 891 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 1763/2003 DATED 26.04.2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT-I (ADHOC), KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` ANIL KUMAR S/O. KARUNAKARAN PILLAI, AMBIKA SADANATHIL,PULIYOOR VANCHI, THEKKUMURI CHERI, KALLELIBHAGAM VILLAGE, KARUNAGAPPALLY. ``` ``` BY ADV T.GOPALAKRISHNAN ``` ## **`RESPONDENT/RESPONDENT:`** ``` STATE OF KERALA REP. BY THE EXCISE INSPECTOR,KARUNGAPPALLY, THROUGH THE PUBLIC PROSEUCTOR, HIGH COURT OF KERALA., (CRIME NO.86/1999 EXCISE RANGE,KARUNAGAPPALLY). ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.891 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 891 of 2008 --------------------------------------------- Dated this the 1[st] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 26.04.2008 passed by the Additional Sessions Court-I (Adhoc), Kollam, in Sessions Case No.1763/2003, the 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 year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.06.1999 at 11.30 a.m. the accused was found in possession of 3.325 litres of arrack in 19 packets each containing 175 ml on the public road leading to the railway station, Karunagappally, 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.891 of 2008 ``` ``` 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 5 and proved Exts. P1 to P7 and MOs. 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, the 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 from both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 6. Heard Sri.T.Gopalakrishnan, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused challenges the judgment of conviction and sentence on the ground that the ``` Crl.A.No.891 of 2008 ``` ``` 4 ``` prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. The learned counsel relied on the following circumstances to substance his contentions: (a) The specimen seal stated to have been affixed on the bottle containing the sample was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory. (b) The detecting officer has not narrated the nature and description of the seal used, in the seizure mahazar. The officials who handled the sample during its transit from the place of occurrence to the Court and the laboratory were not examined to rule out the possibility of the sample being changed or tampered with. 8. Ext.P1 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. The detecting officer had drawn sample at the place of occurrence. In Ext.P1, the detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample so as to ensure the genuineness of sample produced before the Court. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. The detecting officer has not given ``` Crl.A.No.891 of 2008 ``` ``` 5 ``` evidence as to the nature of the seal used. The bottle containing the sample was produced before the Court on 18.06.1999. Ext.P7 Certificate of Chemical Analysis shows that it was forwarded to the laboratory as per letter dated 22.06.1999. The sample reached the laboratory only on 24.06.1999. The custody of the sample during the period from 22.06.1999 to 24.06.1999 has not been satisfactorily explained. The sample remained in the custody of the Property Clerk of the Court from 18.06.1999 to 22.06.1999. A Preventive Officer by name Stephen, delivered the sample to the laboratory only on 24.06.1999. Neither the Property Clerk nor Sri.Stephen was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 9. 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. 10. 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 ``` Crl.A.No.891 of 2008 ``` ``` 6 ``` occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 11. 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. Daulath 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. 12. 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 ``` Crl.A.No.891 of 2008 ``` ``` 7 ``` 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)** . 13. 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. 14. 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. 15. In the absence of convincing evidence to show that the very same sample drawn at the place of occurrence reached the Chemical Examiner’s Laboratory. Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 16. 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 ``` Crl.A.No.891 of 2008 ``` ``` 8 ``` entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the charge under Section 8(2) of the Abkari Act. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK