Asokan v. Excise Inspector, Kunnamangalum Exise Range, Kozhikode

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** **CRL.A NO. 1388 OF 2007** **AGAINST THE JUDGMENT IN SC 448/2005 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT (ADHOC), KOZHIKODE** ## **APPELLANT/ACCUSED:** ASOKAN, SON OF VELAYUDHAN, ARIKKODICHALIL, POOLAKKODE AMSOM OF KOZHIKODE TALUK. BY ADVS. SRI.JACOB ABRAHAM SMT.KOCHUMOL KODUVATH ## **RESPONDENT/COMPLAINANT:** EXCISE INSPECTOR, KUNNAMANGALAM EXCISE RANGE, KOZHIKODE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV SMT. REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1388 of 2007 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.1388 of 2007 --------------------------------------Dated this the 28[th] day of September, 2022 ## JUDGMENT Aggrieved by the judgment dated 12.07.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode in S.C.No.448/2005, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one and half (1 ½) years and pay a fine of Rs.1 Lakh. During the pendency of this appeal, the appellant died on 25.05.2022. None of the near relatives of the appellant turned up. As the sentence challenged is a composite sentence of fine and imprisonment, the appeal shall not abate. In view of the ratio in Ramesan (Dead) through Lr. Girija A. v. State of Kerala [(2020) 3 SCC 45] this Court is bound to decide the appeal on merits. 2. The prosecution case is that on 24.09.2002, the accused was found in possession of 3 litres of arrack in a 5 litre can on Kalanthodu-Nayarkuzhi road at Poolakkode amsom. 3. After completing the investigation, final report was Crl.A No.1388 of 2007 3 submitted against the accused for the offences punishable under Sections 55(a) and 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, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 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. Jacob Abraham, the learned counsel appearing Crl.A No.1388 of 2007 4 for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution 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: - (a) The prosecution failed to establish that the sample subjected to analysis in the laboratory remained tamper-proof till the same reached the hands of the Analyst. - (b) The delay in the analysis of the sample has not been properly explained. 9. The seizure and arrest were effected by the Preventive officer, Excise Range office, Kunnamangalam (PW1). PW1 produced the properties including the sample before the Assistant Excise Inspector (PW6), Excise Range office, Kunnamangalam on Crl.A No.1388 of 2007 5 24.09.2002 itself. The properties including the sample were produced before the Court on 24.09.2002. The Junior Superintendent of the Court received the properties including the sample as is evident from Ext.P6 property list. 10. While examined in cross, PW6 stated that he could not ascertain the official with whom the sample was produced before the Court. The Excise official, who handled the sample till the same reached the Court, has not been examined by the prosecution. The Junior Superintendent of the Court who received the sample was also not examined. There is no evidence as to the official who produced the sample in the Court. The sample reached the laboratory on 21.10.2002, which is evident from Ext.P8 Certificate of Chemical Analysis. 11. The prosecution has not offered any explanation as to the custody of the sample during the interregnum from 24.09.2002 to 21.10.2022. There is no evidence to show the date on which the sample was forwarded to the laboratory. Exhibit P8 shows that the Excise Guard Sri. M.B.Abdul Jabbar delivered the sample in the laboratory on 21.10.2002. Sri. M.B.Abdul Jabbar was also not Crl.A No.1388 of 2007 6 examined as witness. The sample remained in the custody of the Excise Guard, who produced the same in the Court, the Junior Superintendent of the Court, the property clerk of the Court and Sri.M.B Abdul Jabbar, who delivered the same in the laboratory. None of those officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution (Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 12. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 13. In the instant case, the prosecution failed to establish the link evidence to prove that the sample remained tamper-proof during its transit from the Court to the laboratory. 14. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the Crl.A No.1388 of 2007 7 laboratory on 21.10.2002, it was analysed only on 30.12.2003. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 15. In the instant case, there is no explanation for the delay in the analysis of the sample. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 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 Crl.A No.1388 of 2007 8 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 aspects of the matter cannot, therefore, be sustained. The conviction and sentence passed by the Court below stand set aside. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS