Bhaskaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 26[TH] DAY OF JULY 2022 / 4TH SRAVANA, 1944 ``` ``` CRL.A NO. 862 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENTSC 79/2007 OF ADDITIONAL SESSIONS COURT ``` ``` (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/S:`** ``` BHASKARAN MANGATTU HOUSE, MULLARINGADU KARA, VANNAPPURAM, VILLAGE, THODUPUZHA TALUK. ``` ``` BY ADVS. ``` ``` SRI.D.PEETHAMBARAN SRI.SUNNY VARGHESE ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE SUB INSPECTOR OF POLICE, KALIYAR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 862 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 862 OF 2008** =================== Dated this the 26[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 09.04.2008, passed by the IV[th] Additional Sessions Court, (Adhoc-II), Thodupuzha in S.C.No.79/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(b) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.09.2005 at about 6.30 p.m., the appellant/accused was found engaged in distillation of arrack in his residence at Pulickathotty, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences ``` CRL.A NO. 862 OF 2008 ``` ``` 3 ``` punishable under Sections 8(2) and 55 (g) 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 him for the offences punishable under Sections 55(b) and 55 (g) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P9 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 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 found ``` CRL.A NO. 862 OF 2008 ``` ``` 4 ``` the accused guilty of the offence under Section 55(b) of the Abkari Act and convicted him thereunder. 6. Heard Sri. D. Peethambaran, 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/accused challenged the judgment of conviction and sentence on the following grounds; a). The prosecution failed to establish the identity of the person, who was in possession of the contraband substance at the time of occurrence. b). The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the Analyst at the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 09.09.2005 by the Sub Inspector of Police, Kaliyar Police Station (PW5). According to PW5, on getting reliable information ``` CRL.A NO. 862 OF 2008 ``` ``` 5 ``` that the accused was engaged in the preparation of illicit arrack at his residence, he proceeded to there. On seeing the police team, the accused escaped from the scene. PW5 and the other official witnesses do not have a case that they had previous acquaintance with the accused. They identified the accused in the year 2008, after a long lapse of about 3 years in the Court. Going by the evidence of the official witnesses, they had only a fleeting glimpse of the person, who ran away from the scene of occurrence. No test identification parade was conducted in this case. The witnesses had no opportunity to see the accused after the incident. 9. It is well settled that where a witness Identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare ``` CRL.A NO. 862 OF 2008 ``` ``` 6 ``` testimony regarding the identification of an accused for the first time in Court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police (AIR 2020 (SC) 254), State (Delhi Administration) v. V.C.Shukla and another (AIR 1980 (SC) 1382), Mohd. Abdul Hafeez v. State of AP** **(AIR 1983 (SC) 367)** . So, on this ground alone, the prosecution must fail. 10. The learned counsel for the appellant/accused challenged the genuineness of the sample subjected to analysis in the Chemical Examiner’s Laboratory on the following grounds; a). The delay in the production of properties, including the sample, before the Court has not been properly explained by the prosecution. b). The officials who handled the sample during its transit from the Court to the Laboratory were not examined to rule out the possibility of the sample being ``` CRL.A NO. 862 OF 2008 ``` ``` 7 ``` changed or tampered with. 11. Though the alleged seizure was effected on 09.09.2005, the properties, including the sample, were produced before the Court only on 13.09.2005. The prosecution has not offered any satisfactory explanation for the delay in the production of properties, including the sample, before the Court. 12. In **Ravi v. State of Kerala & another** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We therefore, answer the reference as follows; It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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) 13. 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 delay when there is delayed ``` CRL.A NO. 862 OF 2008 ``` ``` 8 ``` production of the property. 14. 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. 15. The properties, including the sample, were received by the Junior Superintendent of the Court and remained in custody of the Property Clerk of the Court till the same was sent to the Laboratory. The prosecution has not given evidence as to the person with whom the sample was forwarded to the Laboratory. The Junior Superintendent of the Court, the Property Clerk of the Court and the Police Official, who delivered the sample in the laboratory were not examined by the prosecution. Non examination of those officials is fatal to the prosecution as it failed to establish the tamper proof despatch of the sample from the Court to the laboratory. Omission on the part of the prosecution in examining ``` CRL.A NO. 862 OF 2008 ``` ``` 9 ``` those officials would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 16. 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. 17. 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. 18. In **Sasidharan v. State of Kerala [2007 (1) KLT 720],** this Court had occasion to elucidate on the ``` CRL.A NO. 862 OF 2008 ``` ``` 10 ``` 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 tamperproof condition. Relying on **State of Rajastan 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. 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. 862 OF 2008 ``` ``` 11 ``` 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]** . 19. In the instant case, the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value to connect the accused with the contraband. 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 ``` CRL.A NO. 862 OF 2008 ``` ``` 12 ``` 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. Any amount deposited by the accused as per the directions of this Court shall be disbursed to him. The appeal is allowed as above. **Sd/-** **K.BABU, JUDGE** LU