BAVA @ MOIDEEN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 CRL.A NO. 1651 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 417/2005 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI ``` ``` CP 50/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,TIRUR APPELLANT/S: ``` ``` BAVA @ MOIDEEN KALUMARAKATH VEEDU, THALAKKAD AMSOM,, KOTTATHARA DESOM, TIRUR TALUK. BY ADV SRI.T.KRISHNAN UNNI (SR.) ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SR PP SMT.REKHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1651 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 09.08.2007, passed by the Additional Sessions Court, Fast Track No.III, Manjeri in Sessions Case No.417/2005, the 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 six months and pay a fine of Rs. 1 Lakh. 2. The prosecution case is that on 18.04.2005 at 6.45 pm, the accused was found in possession of 2.25 litres of illicit arrack at Puthiyangadi-Kattachira Road 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 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 ``` CRL.A NO. 1651 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 5 and proved Exts.P1 to P9 and MOs 1 to 3. 5. After the closure of the evidence on behalf of the prosecution, 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 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and to 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 under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs. 1 Lakh under Section 8(2) of the Abkari Act. ``` CRL.A NO. 1651 OF 2007 ``` ..4.. 6. Heard Sri. T. Krishnanunni, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior 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 for the appellant relied on the following circumstances to substantiate his contentions:- - (a) The detecting officer has not narrated the nature and description of the seal used in Ext.P1 seizure mahazar. - (b) The detecting officer has not given evidence as to the nature of the seal used. - (c) The prosecution has not explained the ``` CRL.A NO. 1651 OF 2007 ``` ..5.. custody of the sample during the interregnum from 19.04.2005 to 26.04.2005. - (d) The property clerk of the Court and the Excise Guard who delivered the sample to the laboratory were not examined to rule out the possibility of the sample being changed or tampered with. 9. The alleged seizure was effected on 18.04.2005 by PW1, the excise inspector, Excise Range, Tirur. According to PW1, at the place of occurrence, he had drawn sample from the contraband recovered from the possession of the accused. He has not narrated the nature and description of the seal stated to have been affixed in the bottle containing the sample. PW1 has also not given evidence as to the nature of the seal used. The bottle containing the sample was produced before the Court on 19.04.2005 which was received by the Junior Superintendent of the Court. The prosecution has not given evidence as to the date on which the sample was ``` CRL.A NO. 1651 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** forwarded to the laboratory. Ext.P7 Certificate of Chemical Analysis shows that the bottle containing the sample was forwarded to the laboratory as per letter dated 19.04.2005 of the Judicial First Class Magistrate, Tirur. In the absence of any contra evidence, the necessary inference is that the bottle containing the sample was forwarded to the laboratory on 19.04.2005 itself. Ext.P7 further shows that the sample reached the laboratory only on 26.04.2005 through Shri. Suraj V.P., an Excise Guard. The custody of the sample during the interrugnum from 19.04.2005 to 26.04.2005 has not been explained by the prosecution. 10. 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 ``` CRL.A NO. 1651 OF 2007 ``` ..7.. 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.” 11. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 12. In the present case, the Prosecution has absolutely no explanation regarding the delay in bringing the sample after obtaining it from the Court to the laboratory. 13. It is evident that the sample remained in the custody of the Junior Superintendent of the Court, the Property Clerk of the Court and Shri. Suraj V.K., the excise Guard who delivered the sample in the laboratory. ``` CRL.A NO. 1651 OF 2007 ``` ..8.. None of these officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 14. 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. 15. 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 tamperproof 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. 16. In **Sasidharan v. State of Kerala** [2007 (1) KLT 720], this Court had occasion to elucidate on the legal ``` CRL.A NO. 1651 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 tamperproof condition. Relying on **State of Rajasthan v. Daulat 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. 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 Section ``` CRL.A NO. 1651 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** 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. 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. 18. In the present case the prosecution failed to show that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 19. 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 ``` CRL.A NO. 1651 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated. 20. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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 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. 1651 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** offence punishable under Section 8(2) of the Abkari Act. In the result, (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged ; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE**