B. Balakrishna Shetty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 20[TH] DAY OF FEBRUARY 2024 / 1ST PHALGUNA, 1945** **CRL.A NO. 894 OF 2009** **AGAINST THE JUDGMENT DATED 28.04.2009 IN SC NO.211 OF 2007 OF** **ADDITIONAL SESSIONS COURT (ADHOC-II), KASARAGODE** **APPELLANT/ACCUSED:** **B.BALAKRISHNA SHETTY, AGED 55, S/O.BANDAPPA SHETTY, KANILE HOUSE, BADAJE, BADAJE VILLAGE, KASARAGOD. BY ADVS. SRI.T.B.SHAJIMON SMT.GOVINDU P.RENUKADEVI** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, THE EXCISE INSPECTOR, MANJESHWAR POLICE STATION, WHO IS REPRESENTED BEFORE THIS HON'BLE COURT BY THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.894 of 2009 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.894 of 2009 --------------------------------------Dated this the 20[th] day of February, 2024 ## JUDGMENT Aggrieved by the judgment dated 28.04.2009, passed by the Additional Sessions Court (Adhoc-II), Kasaragod in S.C.No.211/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 19.09.2005 at 7.30 p.m, the accused was found in possession of 55 packets each containing 100 ml of arrack at Angadipadavu 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 55(a) 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.894 of 2009 3 Section 55(a) 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 4 and proved Exts.P1 to P8. 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 the learned counsel appearing for the appellant/accused and the learned 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 prove that the contraband substance seized at Crl.A No.894 of 2009 4 the scene 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) Exhibit P1 seizure mahazar does not contain - the nature and description of the seal stated to - have been affixed on the bottle containing the sample. - (ii) The detecting officer has not given evidence as to the nature of the seal used. - (iii) The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced. 9. Exhibit P3 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 and description of the seal used. There is nothing to show that the specimen of the seal was produced before the Court to ensure the genuineness of the sample produced. Crl.A No.894 of 2009 5 10. 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. 11. 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 occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 12. 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's case (supra) this Court held that where sample changed several hands before reaching the Crl.A No.894 of 2009 6 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 reemphasized 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's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] . 13. In Bhaskaran K. v. State of Kerala and another (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 Crl.A No.894 of 2009 7 the Court to satisfy the genuineness of the sample produced in the Court. 14. 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. 15. 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] }. 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 entitled to the benefit of doubt arising from the absence of link evidence as discussed above. Crl.A No.894 of 2009 8 17. 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. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS