Babu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 19[TH] DAY OF MARCH 2024 / 29TH PHALGUNA, 1945** **CRL.A NO. 1765 OF 2010** **AGAINST THE JUDGMENT DATED 12.07.2010 IN SC NO.676 OF 2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK NO.I (ADHOC), PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** **BABU, S/O GEEVARGHESE, KINARUVILATHAZHATHIL VEEDU, MUNDAPPALLY, PERINGANADU, ADOOR, PATHANAMTHITTA DISTRICT. BY ADV SRI.A.C.DEVY** ## **RESPONDENT/STATE:** **STATE OF KERALA, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM,KOCHI-31.** **BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1765 of 2010 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.1765 of 2010 --------------------------------------Dated this the 19[th] day of March, 2024 ## JUDGMENT Aggrieved by the judgment dated 12.07.2010, passed by the Additional District and Sessions Court, Fast Track No.I (Adhoc), Pathanamthitta in S.C.No.676/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.07.2001 at 7.45 p.m, the accused was found in possession of 180 plastic covers containing 150ml of arrack at Mundappally Kara in Peringanad village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 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 Crl.A No.1765 of 2010 3 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. Exhibits C1 and C2 were marked as Court Exhibits. 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 challenges the Crl.A No.1765 of 2010 4 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: - (i) The delay in the production of the properties, including the sample, has not - been satisfactorily explained by the prosecution. - (ii) The specimen of the seal has not been produced before the Court to ensure the genuineness of the sample produced. - (iii) The prosecution has not given any explanation for the custody of the sample during the interregnum from 15.11.2001 to - 21.11.2001. - (iv) The various officials who handled the sample during its transit from the Court to Crl.A No.1765 of 2010 5 the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 07.07.2001. The properties, including the sample, were produced before the Court only on 09.07.2001, as is evident from Exhibit P6 property list. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353] , on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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) In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. Crl.A No.1765 of 2010 6 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. 11. The detecting officer had prepared Ext.P3 seizure mahazar. Exhibit P7 forwarding note shows that the space meant for affixing the sample seal is left vacant. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the properties including the sample and forwarded to the Chemical Examiner for verification. 12. 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 the Court to satisfy the genuineness of the sample produced in the Court. 13. 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 Crl.A No.1765 of 2010 7 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. 14. The prosecution failed to explain the custody of the sample during the interregnum from 15.11.2001 to 21.11.2001. Exhibit P8 shows that the sample was forwarded to the laboratory on 15.11.2001, but the sample was delivered in the laboratory on 21.11.2001. 15. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 16. The sample remained in the custody of the property clerk. The sample was delivered in the laboratory through an Excise Guard by name Unnikrishnan. The property clerk and the Excise Guard, who delivered the sample in the laboratory were not Crl.A No.1765 of 2010 8 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. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 17. Since the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. ## 18. 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. 19. 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 Crl.A No.1765 of 2010 9 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] }. 20. 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. 21. 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 Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS