Babu v. Excise Inspector, Adimaly and State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 11[TH] DAY OF AUGUST 2022 / 20TH SRAVANA, ``` ## **`1944`** ## **`CRL.A NO. 2291 OF 2007`** ``` AGAINST THE ORDER/JUDGMENTSC 442/2005 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/S:`** ``` BABU ``` ``` ADACKAKKULAM BHAGAM, THUMPIPPARAKUDY,, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK,, IDUKKI DISTRICT. ``` ``` BY ADV SRI.UNNIKRISHNAN.V.ALAPATT ``` ## **`RESPONDENT/S:`** - `1 EXCISE INSPECTOR, ADIMALY` - `2 STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.` ``` BY SENIOR PUBLIC PROSECUTOR SMT REKHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 11.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2291 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 22.11.2007, passed by the Additional Sessions Court, (Adhoc) - II Thodupuzha in Sessions Case No.442/2005, the appellant/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 three months and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 09.10.2002 at 12.45 p.m. the accused was found in possession of 750 ml of arrack at Thodupuzha 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 ``` CRL.A NO. 2291 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 5 and proved Exts. P1 to P6 and MOs. 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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 to adduce evidence, if any, he may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 2291 OF 2007 ``` ..4.. 6. Heard Sri. Unnikrishnan V.Alappat, 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 challenges 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 relied on the following circumstances to substantiate his contentions:- - (i) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) Ext.P5 forwarding note/requisition for sending sample to the laboratory does not contain the specimen seal used by the Detecting Officer. ``` CRL.A NO. 2291 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 9. The alleged seizure was effected on 09.10.2002. Ext.P2 is the seizure mahazar prepared by the Detecting Officer who effected seizure and arrest. The Detecting Officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P2 seizure mahazar. He has also not given evidence as to the nature of the seal used. The specimen of the seal was also not produced before the Court. Ext.P5 forwarding note/requisition for sending the sample to Court also does not contain the specimen of the seal used. The space meant for affixing the specimen seal is left vacant in Ext.P5. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory. 10. 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 ``` CRL.A NO. 2291 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** genuineness of the sample produced in theCourt. 11. 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. 12. The sample was forwarded to the laboratory through an Excise Guard by name K.M. Ashraf. Ext.P6 Certificate of Chemical Analysis shows that the sample was forwarded through Sri K.M. Ashraf on 22.11.2002, which reached the Court only on 23.11.2002. Sri K.M. Ashraf the Excise Guard who delivered the sample has not been examined. The sample remained in the custody of the property Clerk of the Court, and Sri. K.M. Ashraf, the Excise Guard who delivered the sample to the laboratory. None of those officials were examined to prove ``` CRL.A NO. 2291 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** the tamper-proof despatch of the sample to the laboratory. Non-examination of those officials who handled the sample during different stages is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 13. 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 appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged ; (iv) He is set at liberty ; ``` CRL.A NO. 2291 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj