Balakrishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` CRL.A NO. 1472 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 13.07.2011 IN SC NO.562 OF 2010 OF THE ADDITIONAL SESSIONS COURT (ADHOC -III), PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` BALAKRISHNAN, S/O LAKSHMANAN, VADAKKUMPURAM VEEDU, KOTHAMANGALAM DESOM, ALATHUR TALUK, PALAKKAD DISTRICT. ``` ``` BY ADVS. SRI.SAJAN VARGHEESE K. SRI.LIJU. M.P ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REP. BY THE EXCISE INSPECTOR, KUZHALMANNAM EXCISE RANGE OFFICE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV. SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1472 of 2011 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1472 of 2011 --------------------------------------------- Dated this the 27[th] day of May, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 13.07.2011, passed by the Additional Sessions Court (Adhoc-III) Fast Track Court-III, Palakkad in S.C.No. 562/2010, 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 one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 04.07.2008 at 8.45 a.m. the accused was found in possession of 10 litres of arrack at Theyyandi Check Dam 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 ``` Crl.A.No.1472 of 2011 ``` ``` 3 ``` 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 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, MO.1 series and MO.2. 5. After the closure of 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 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. 6. Heard the learned counsel appearing for the ``` Crl.A.No.1472 of 2011 ``` ``` 4 ``` appellant/accused and the learned 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 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) Delay in the production of the properties including the sample has not been satisfactorily explained. (ii) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 04.07.2008 Exhibit P4, the list of properties shows that the properties, including the sample, were produced before the Court only on 07.07.2008. The prosecution has not offered any explanation for the delay in the production of the properties, including the ``` Crl.A.No.1472 of 2011 ``` ``` 5 ``` sample, 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 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. 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 the sample could not be ruled out. ``` Crl.A.No.1472 of 2011 ``` ``` 6 ``` 12. The sample was received in the Court by the Junior Superintendent of the Court and remained in the custody of the Property Clerk till it was forwarded to the Chemical Examiner’s Laboratory. Ext. P8 Certificate of Chemical Analysis shows that the sample was delivered in the laboratory through an Excise Guard by name Sri.P.N.Rameshkumar. The Junior Superintendent of the Court, the property clerk, and the Excise Guard who delivered the sample in the laboratory 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 the course of its transit from the Court to the laboratory is fatal to the prosecution as prosecution failed 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 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. ``` Crl.A.No.1472 of 2011 ``` ``` 7 ``` 14. A legal obligation is cast on the prosecution to prove that it was 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 the contraband 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. Daulath Ram (AIR 1980 SC 1314)** in **Sasidharan (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 seals on the sample have not been tampered with. ``` Crl.A.No.1472 of 2011 ``` ``` 8 ``` 16. In **Sathi v. State of Kerala (2007 (1) ILR 718 (Ker.))** , this Court re-emphasized 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 (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 S. 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 (supra)** and **Sathi (supra)** has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . 17. As the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. ``` Crl.A.No.1472 of 2011 ``` ``` 9 ``` 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. 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. 20. 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 appellant/accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK