Baby, S/o Thundupparambil William v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 16[TH] DAY OF JUNE 2022 / 26TH JYAISHTA, 1944 ``` ``` CRL.A NO. 1135 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 433/2006 OF ADDITIONAL SESSIONS COURT ``` ``` (FAST TRACK COURT NO.II - ADHOC), THRISSUR CP 155/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,IRINJALAKUDA ``` ``` APPELLANT/ACCUSED: ``` ``` BABY, S/O. THUNDUPARAMBIL WILLIAM, MUPLIYAM, MUKUNDAPURAM. ``` ``` BY ADV P.M.RAFIQ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY SR.PUBLIC PROSECUTOR SMT. REKHA.S ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A No.1135 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1135 of 2007 --------------------------------------Dated this the 16[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 21.06.2007, passed by the Additional Sessions Judge, [Fast Track Court No.II-Adhoc], Thrissur in S.C.No.433/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 19.09.2003, the appellant/accused was found in possession of 5 litres of arrack in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Irinjalakuda. The case was committed to the Sessions Court, Thrissur 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 Crl.A No.1135 of 2007 3 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 P11 and MO 1. 5. After the closure of the prosecution evidence, 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 of Cr.PC 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. On the side of defence, DW1 was examined. 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. 6. Heard Sri. P.Vijaya Bhanu, the learned Senior Counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned Senior Counsel for the appellant challenged the judgment of conviction and sentence on the ground that the Crl.A No.1135 of 2007 4 prosecution has not succeeded in proving that the very same sample drawn from the scene of occurrence was produced before the Court and forwarded to the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) The inordinate delay in the production of the properties including the sample before the Court has not been satisfactorily explained by the prosecution. - (ii) The specimen of the seal was not produced before the Court at the time of production of the sample. - (iii) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (iv) The officials who handled the sample during its transit from Court to the laboratory were not examined. - (v) The delay in the analysis of sample has not been explained by the prosecution. Crl.A No.1135 of 2007 5 9. The alleged seizure was effected on 19.09.2003 at 06:15pm. The arrest and seizure were done by PW1, the Assistant Excise Inspector, Irinjalakuda range. The properties, including the sample, were produced before the Court only on 25.09.2003 as is evident from Ext.P7 property list. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 10. 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 **Ravi's 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 Crl.A No.1135 of 2007 6 delay when there is delayed production of the property. 11. 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 samples could not be ruled out. 12. 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. The Excise Officer (PW1) who detected the sample has not given any evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal used at the scene of occurrence had been produced before the Court. The junior Superintendent of the Court concerned received the sample on 25.09.2003. The sample was forwarded to the laboratory as per letter dated 29.09.2003 through an Excise Guard Shri.P.G.Dileep Kumar. The Junior Superintendent of the Court and Sri.P.G.Dileep Kumar were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 13. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in 7 Crl.A No.1135 of 2007 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. 14. A legal obligation is cast on the prosecution to prove that 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 it reaches the laboratory is required to be established by the prosecution. 15. 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 Chemical Examiner, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in their custody the Crl.A No.1135 of 2007 8 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]. 16. 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. Crl.A No.1135 of 2007 9 17. In the instant case, the prosecution miserably failed to prove that the contraband substance allegedly seized from the possession of accused was eventually subjected to analysis in the Chemical Examiner's Laboratory. 18. Another aspect to be considered is the delay in the analysis of the sample. Though the sample reached the laboratory on 29.09.2003, the sample was subjected to analysis only on 07.08.2004. On the question of delay in the analysis of the sample this Court in **Krishnadas v. State of Kerala** [2019 KHC 191] held thus: _“6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”_ Crl.A No.1135 of 2007 10 In the instant case, the delay of almost a year in analyzing the sample has not been explained by the prosecution. 19. The upshot of the above discussion is that the judgment of conviction and sentence cannot 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 AJ