Balachandran Anikkattu Veedu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 ``` ``` CRL.A NO. 2258 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT SC 1756/2003 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, KOLLAM ``` ## **`APPELLANT/2ND ACCUSED:`** ``` BALACHANDRAN ANIKKATTU VEEDU, KILIKOLLOOR, KOLLAM-691 004. BY ADVS. M.R.JAYAPRASAD P.MOHANDAS (ERNAKULAM) ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** `1 STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2 THE SUB INSPECTOR OF POLICE ANCHALUMMOODU POLICE STATION, KOLLAM-691 013. BY ADV PUBLIC PROSECUTOR` SRI.G.SUDHEER P.P ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2258 OF 2007 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## CRL.A.No.2258 of 2007 --------------------------------------Dated this the 29[th] day of January, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 31.10.2007, passed by the Additional District and Sessions Court, Adhoc-II, Kollam, in Sessions Case No.1756/2003, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three years and pay a fine of Rs.3 Lakh. 2. The prosecution case is that on 22.04.2002, the appellant was found in possession of 35 liters of arrack at Anchalummodu, in violation of the provisions of the Abkari Act. 3. Originally, the case was charge sheeted against three persons. Accused No. 3 failed to face trial. So the case was split up, and the court proceeded with the trial of accused Nos. 1 and 2. After trial, accused No.1 was acquitted, and appellant/accused No.2 was convicted. ``` CRL.A NO. 2258 OF 2007 ``` ``` 3 ``` 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 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, charges were framed against accused No.1 for the offences punishable under Sections 8(2) and 55(i) of the Abkari Act and accused No.2 for the offences punishable under Sections 8(2) and 55 (a) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the trial court for the aforesaid offences. 5. The prosecution examined PWs.1 to 8 and proved Exts.P1 to P6, MOs. I and II. 6. After the closure of prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence they were called upon to enter on their defence and ``` CRL.A NO. 2258 OF 2007 ``` ``` 4 ``` adduce evidence, if any, they may have in support thereof. On the side of defence, DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial court convicted the appellant/accused No.2 for the aforesaid offences. Accused No.1 was acquitted. 7. Heard Dr.K.P.Satheeshan, the learned counsel appearing for the appellant/ accused No.2 and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. 8. 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 seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 9. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- i) The seizure mahazar does not contain the specimen of the seal used by the detecting officer at the place of occurrence. ii) The forwarding note, which contains the ``` CRL.A NO. 2258 OF 2007 ``` ``` 5 ``` specimen of the seal, was not forwarded to the Chemical Examiner’s Laboratory for comparison. iii) Various officials who handled the sample during the course of 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. 10. The alleged seizure was effected on 22.04.2002. The detecting officer has prepared seizure mahazar from the scene of occurrence which is marked as Ext.P1. He had drawn sample at the scene of occurrence. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. No material has been placed before the Court to show that the specimen seal was produced before the Court so as to enable the Court to ascertain the genuineness of the sample produced. 11. In Bhaskaran K. v. State of Kerala and another ``` CRL.A NO. 2258 OF 2007 ``` ``` 6 ``` (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. 12. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 13. Forwarding note/requisition for sending sample to the laboratory should contain the specimen seal stated to have been used by the detecting officer which would enable the Chemical Examiner to ascertain the genuineness of the sample delivered in the laboratory. In the present case, the prosecution failed to establish that a forwarding note was prepared and forwarded to the laboratory. 14. In Ramachandran v. State of Kerala [2021 (1) KLT ``` CRL.A NO. 2258 OF 2007 ``` ``` 7 ``` 793) while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 15. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P5 is the Certificate of Chemical Analysis. It shows that the sample was forwarded to the laboratory as per letter dated 03.05.2002 of the Judicial First Class Magistrate Court-I, Kollam. The sample was delivered to the laboratory only on 04.05.2002 by a police constable (No.4676). The sample remained in the custody of the property clerk. None of these officials, the property clerk and the police constable who delivered the sample to the laboratory, were examined by the prosecution to rule out the possibility of the sample being ``` CRL.A NO. 2258 OF 2007 ``` ``` 8 ``` changed or tampered with. 16. 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. 17. 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 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]}. 18. 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. 19. The upshot of the above discussion is that the ``` CRL.A NO. 2258 OF 2007 ``` ``` 9 ``` conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused No.2 is acquitted of the offences alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- K. BABU JUDGE ## **`saap`**