Babu Rajendran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` CRL.A NO. 880 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 1339/2005 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC)-IV, TRIVANDRUM ``` ## **`PETITIONER/APPELLANT:`** ``` BABU RAJENDRAN AGED 55, S/O. DIVAKARAN, PUTHANVEEDU, KAPPIL DESOM, EDAVA VILLAGE, CHIRAYINKEEZH TALUK. ``` ``` BY ADV SRI.K.C.ELDHO ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY EXCISE INSPECTOR VARKALA, THOUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 880 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 880 OF 2008** =================== Dated this the 25[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 22.04.2008, in S.C.No.1339/2005 on the file of the Additional Sessions Court, Fast Track Court (Adhoc) No.IV, Thiruvananthapuram, the accused has preferred this appeal. The appellant/accused was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 04.09.2003 the Excise team led by the Excise Circle Inspector, Attingal was on patrol duty. When they reached Kappil Junction, they got reliable information that the accused was engaged in sale of arrack in the property adjacent to his house. The Excise Party reached the place of occurrence at 8.15 pm and they saw the accused pouring liquid from ``` CRL.A NO. 880 OF 2008 ``` ``` 3 ``` a plastic can to a green plastic bottle. The Excise party detained him and on verification of the 5 litre black plastic can possessed by him, it was found that the same contained four litres of arrack. The plastic bottle contained about one litre of arrack. Two other plastic cans were also recovered from the place of occurrence. 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 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 6 and proved Exts.P1 to P8 and MOs 1 and 2. 5. After the closure of the prosecution evidence, ``` CRL.A NO. 880 OF 2008 ``` ``` 4 ``` 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. After hearing the arguments addressed on both sides, the Trial Court found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. K. C. Eldho, 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 challenged the judgment of conviction and sentence on the following grounds:- a. The act of taking sample by the Property Clerk of the Court has no sanction of the law. - b. The prosecution failed to establish that the ``` CRL.A NO. 880 OF 2008 ``` ``` 5 ``` contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 04.09.2003 by the Excise Circle Inspector, Attingal (PW3). The Detecting Officer had not drawn sample from the contraband allegedly seized from the place of occurrence. PW3 produced the bulk quantity of arrack seized from the place of occurrence before the Court. The Property Clerk of the Court (PW6) stated that he had drawn sample from the contraband produced before the Court and forwarded the same to the Laboratory. The act of drawing sample by the Property Clerk of the Court is under vehement challenge. 9. This Court had considered the legality of the procedure in which the sample was drawn by the Property Clerk of the Court in **Baburaj v. State of Kerala (2021 (6) KLT 416),** wherein it was held thus; “ 35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate ``` CRL.A NO. 880 OF 2008 ``` ``` 6 ``` undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the Court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting ofcer, after investigation, is to fle the fnal report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of fnal report laid by the investigating ofcer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala [2019 (2) KLT 974]** , wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of** **Kerala [2020 (2) KLT 590]** , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the Court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not ``` CRL.A NO. 880 OF 2008 ``` ``` 7 ``` empowered to draw sample from the contraband produced before him by the detecting ofcer.” (emphasis added) 10. In **Baburaj’s Case** (Supra) this Court further held that, the procedure adopted in drawing sample by the official of the Court is not a procedure established by law and therefore, the result of analysis based on the sample so drawn has no evidentiary value. On this ground itself, the prosecution must fail. 11. The prosecution also failed to establish the genuineness of the contraband substance produced before the Court. The specimen of the seal used was not produced along with the properties before the Court. Ext.P1 seizure mahazar does not contain the nature and description of the seal used by the Detecting Officer at the place of occurrence. Ext.P6 forwarding note does not contain the specimen of the seal affixed on the bottles containing the sample. There is nothing to show that the specimen of the seal was forwarded to the Laboratory for facilitating the analyst to verify the genuineness of the ``` CRL.A NO. 880 OF 2008 ``` ``` 8 ``` sample produced for examination. Ext.P7 further shows that the bottles containing the sample were forwarded to the Laboratory as per letter dated 29.09.2003. Ext.P7 shows that the sample reached the Laboratory on 29.08.2003 was subjected to analysis. This anomaly indicates that the sample forwarded from the Court must not have been subjected to analysis in the Chemical Examiner’s Laboratory. 12. 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. 13. 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 tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage ``` CRL.A NO. 880 OF 2008 ``` ``` 9 ``` when the contraband reaches the laboratory is required to be established by the prosecution. 14. 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. 15. 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. 16. In the instant case, the prosecution failed to show that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P7 Certificate of ``` CRL.A NO. 880 OF 2008 ``` ``` 10 ``` Chemical Analysis has no evidentiary value to connect the accused with the contraband. 17. The resultant conclusion is that the prosecution has not succeeded in establishing the link connecting the accused with the contraband seized. Therefore, the conviction and sentence passed against the accused cannot be sustained. The appellant/accused is, therefore, not guilty of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the appellant/accused as per the directions of this Court shall be disbursed to him. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU