Appu @ Sreedharan 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. 533 OF 2008** **AGAINST THE JUDGMENT IN S.C.NO. 10/2007 DATED, 21-2-2008 OF THE ADDITIONAL** **SESSIONS COURT (ADHOC-II), MANJERI** ## **APPELLANT/ACCUSED:** **APPU @ SREEDHARAN, S/O KARAPPAN, ATHOLI VEEDU, KANNAMANGALAM, CHERUR,, MALAPPURAM DISTRICT.** **BY ADVS. BABU S. NAIR K.RAKESH** **RESPONDENT/STATE:** **THE STATE OF KERALA, REP.BY THE SUB INSPECTOR OF POLICE, PARAPPANANGADI POLICE STATION - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **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.533 of 2008** **2** ## **`JUDGMENT`** ## **`Dated this the 23[rd] day of May, 2022`** ``` This appeal is directed against the judgment dated 21.02.2008 in S.C.No.10/2007 on the file of the Additional Sessions Court (ADHOC-II), Manjeri, which arose from Crime No.19 of 2005 of Parappanangadi Police Station. The appellant is the sole accused in the crime. ``` ``` 2. By the impugned judgment, the appellant/accused was convicted for the offences punishable under Sections 55(b) and 55(g) of the Abkari Act and sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,00,000/-. ``` ``` 3. The prosecution case is that on 21.09.2005 at about 3.30 p.m., the accused was found distilling arrack near a culvert at Pattarkadavu, Cheroor in Malappuram District, in violation of the provisions of the Abkari Act. ``` ``` 4.After completing the investigation, final report was submitted against the accused for the offence punishable under Sections 55(b) and 55(g) of the Abkari ``` **CRL.A.No.533 of 2008** **3** ``` 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 him for the offences punishable under Sections 55(b) and 55(g) 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 offences. ``` ``` 5.The prosecution examined PWs 1 to 5 and proved Exts.P1 to P9 and MOs 1 to 13. ``` ``` 6.After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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 for the aforesaid offences. ``` ``` 7.Heard Sri.Babu S. Nair, the learned counsel for ``` **CRL.A.No.533 of 2008** **4** ``` the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. ``` ``` 8.The learned counsel for the appellant contended that the prosecution failed to establish the link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest. The learned counsel further submitted that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. ``` ``` 9.The offence was detected by the Excise Inspector, Parappanangadi (PW1). On 21.09.2005, at about 3.30 p.m., PW1 was on patrol duty. When the Excise team led by PW1 reached Vattapontha, on getting reliable information that the accused was engaged in distilling arrack near Pattarkadavu, they proceeded to there. When the Excise team reached the place of occurrence, they found the accused engaged in distilling arrack. The accused was arrested from the place of occurrence. PW1 recovered utensils, used for manufacturing illicit arrack. ``` **CRL.A.No.533 of 2008** **5** ``` PW1 also recovered illicit arrack and wash from the possession of the accused. PW1 collected arrack and wash from the bulk quantity and sealed them to be used as sample. He prepared Ext.P1 mahazar, evidencing the search and seizure. ``` ``` 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 before the Court. ``` ``` 11. PW1 produced the accused and the properties recovered from the scene of occurrence before the Judicial First Class Magistrate Court, Ponnani. According to PW1, as the Judicial First Class Magistrate, Parappanangadi was on leave, the articles seized from the place of occurrence were produced before the Magistrate's Court at Ponnani. PW2, a Preventive Officer, who had accompanied PW1 in ``` **CRL.A.No.533 of 2008** **6** ``` the search and seizure supported the prosecution case. PWs 3 and 4, the independent witnesses did not support the prosecution. PW5, the Excise Circle Inspector conducted investigation and submitted final report. ``` ``` 12. The articles including the bottles containing the sample were produced before the Judicial First Class Magistrate Court, Ponnani and thereafter the articles were transferred to the Judicial First Class Magistrate Court, Parappanangadi. ``` ``` 13. Ext.P6 is the copy of the forwarding note submitted before the Court of the Judicial First Class Magistrate, Parappanangadi. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the Chemical Examiner's Laboratory. Ext.P6 is silent about the date on which the samples were forwarded to the laboratory. Ext.P9, Certificate of Chemical Analysis, shows that the samples were received in the laboratory on 07.05.2005. The sample remained in the custody of the property clerk of the Judicial First Class Magistrate Court, Ponnani, the ``` **CRL.A.No.533 of 2008** **7** ``` property clerk of the Judicial First Class Magistrate Court, Parappanangadi, the official who brought the sample from the Magistrate Court at Ponnani to the Magistrate Court at Parappanangadi, the Excise official who received the bottles for delivering the same to the laboratory and the Excise official who delivered the samples in the laboratory. None of these officials were examined by the prosecution to prove that the samples were handled in a tamper-proof condition. It is the duty of the prosecution to establish that the samples remained tamper-proof, while in the custody of the various officials. The prosecution ought to have examined those witnesses/officials to establish the tamper-proof handling of sample till it reached the laboratory. The inevitable effect of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the place of recovery to the laboratory through the Court concerned. ``` ``` 14. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The ``` **CRL.A.No.533 of 2008** **8** ``` 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. ``` ``` 15. 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 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. ``` ``` 16. 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 ``` **CRL.A.No.533 of 2008** **9** ``` 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 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). ``` ``` 17. In the instant case, the prosecution was unable to establish the link connecting the accused with the ``` **CRL.A.No.533 of 2008** **10** ``` contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to ``` ``` 18. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is therefore, not guilty of the offences punishable under Sections 55(b) and 55(g) of the Abkari Act. He is acquitted of the offences alleged. He is set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/23/05/2022 ```