Babu v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, ``` ## **`1945`** ``` CRL.A NO. 1282 OF 2010 ``` ``` AGAINST THE JUDGMENT DATED IN SC NO.71 OF 2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, FAST TRACK COURT, PATHANAMTHITTA ``` ## **`APPELLANT:`** ``` BABU, S/O.GEEVARGHESE, KINARUVILA THAZHETHIL VEEDU,, MUNDAPPALLY MURI, PERINGANADU VILLAGE,, ADOOR TALUK, PATHANAMTHITTA DISTRICT. ``` ``` BY ADV SRI.A.C.DEVY ``` ## **`RESPONDENT:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ``` BY SRI.G.SUDHEER-PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1282 OF 2010 ``` ``` 2 ``` ## K.BABU, J ------------------------------------------------- ## Crl.A No.1282 of 2010 ## -------------------------------------------------Dated this the 20th day of March, 2024 ## J U D G M E N T Aggrieved by the judgment dated 31.5.2010, passed by the Additional District and Sessions Court (Ad-Hoc), Fast Track CourtII, Pathanamthitta in S.C.No.71/2008, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offence punishable 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. 3. The prosecution case is that on 10.7.2002 at 5.30 pm, the accused was found in possession of 35 plastic covers each of 150 ml arrack at Kuzhiplavila junction in Peringanadu village. 4. 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 Judicial First Class ``` CRL.A NO. 1282 OF 2010 ``` ``` 3 ``` Magistrate Court, Adoor. The case was committed to the Sessions Court, Pathanamthitta 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. 5. The prosecution examined PWs.1 to 6 and proved Exts.P1 to P8 and MOs 1 to 2 series and MO3. 6. 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 7. Heard Sri.A.C.Devy, the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant challenged the ``` CRL.A NO. 1282 OF 2010 ``` ``` 4 ``` judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized from the scene of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: i) The inordinate delay in production of the properties including the sample has not been properly explained. ii) Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. iii) There is no evidence to show that the specimen of the seal was produced before the Court and forwarded to the laboratory for comparison. iv) The various officials who handled the sample during its transit from the court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 9. The alleged seizure was effected on 10.7.2002. Ext.P6 property list shows that the properties including the sample were produced before the Court only on 12.7.2002. The prosecution has not offered any explanation for the delay in production of the properties before the court. On the question of delay in production of the properties, a Division Bench of this Court in ``` CRL.A NO. 1282 OF 2010 ``` ``` 5 ``` ## Ravi v. State of Kerala & another (2011(3) KHC 121) held thus: “8( 1). It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (Emphasis supplied) 10. The Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. 11. In the instant case, there is no satisfactory explanation for the delay in the production of the property. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 12. Ext.P3 is the seizure mahazar prepared at the scene of occurrence. It 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 of the seal used. Ext.P8 copy of the forwarding note shows ``` CRL.A NO. 1282 OF 2010 ``` ``` 6 ``` that the space meant for affixing the sample seal was kept vacant. Therefore, there is no evidence to show that the specimen of the sample was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. 13. 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. 14. 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. 15. The prosecution has not given any explanation of the sample during the interregnum from 20.7.2002 to 24.9.2002. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P7 Certificate of Chemical Analysis shows that the sample was forwarded to the ``` CRL.A NO. 1282 OF 2010 ``` ``` 7 ``` laboratory as per letter dated 20.7.2002. Ext.P7 further shows that the sample was delivered in the laboratory on 24.9.2002 by an Excise Guard by name Sri.Girish Kumar. There is no explanation for the custody of the sample during the interrugum from 20.7.2002 to 24.9.2002. Sri.Girish Kumar, the Excise Guard who delivered the sample in the laboratory and the Property Clerk, who is the custodian of the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314]. 16. The resultant conclusion is that the prosecution failed to establish that the contraband allegedly seized from the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 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. The appellant/accused is, therefore, found not guilty of the ``` CRL.A NO. 1282 OF 20108 ``` offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The Crl.Appeal is allowed as above. Sd/K.BABU JUDGE ab