Biju and Joy v. State of Kerala

# **`IN THE HIGH COURT OF KERALA KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, ``` ## **`1944`** ## **`CRL.A NO. 1684 OF 2007`** ``` AGAINST THE ORDER/JUDGMENTSC 455/2006 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC)-II, THODUPUZHA CP 45/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`IDUKKI`** ## **`APPELLANTS/ACCUSED NOS. 1 AND 2:`** - `1 BIJU AGED 37 YEARS, S/O ABRAHAM, PAMBRAIYIL HOUSE, KANJIKUZHI VILLAGE,, PERIYARVALLY KARA.` ``` 2JOY AGED 48 YEARS S/O.VARKEY PUTHAYATHUMOOLAYIL HOUSE, CHELACHUVADU KARA, KANJIKUZHI. ``` ``` BY ADVS. SRI.P.DALBI EMMANUEL SRI.A.T.ANILKUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA ERNAKULAM ``` ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1684 OF 2007 ``` ..2.. ## **K.BABU, J. ------------------------------------------Crl.A No.1684 of 2007** ## **--------------------------------------------Dated this the 19[th] day of October , 2022 JUDGMENT** Aggrieved by the judgment dated 16.08.2007, passed by the Additional Sessions Court (Adhoc)-II, Thodupuzha in Sessions Case No.455/2006, the two accused have preferred this appeal. The appellants/accused were convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 17.03.2004 , the appellants/accused were found in possession of 8.600 litres of Indian Made Foreign Liqour in a building bearing No.VII/453 of Kanjikuzhy Panchayat in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report ``` CRL.A NO. 1684 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** was submitted against the accused for the offences punishable under Sections 55(a) and (i) 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 them for the offences punishable under Sections 55(a) and (i) 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. 4. The prosecution examined PWs 1 to 8 and proved Exts.P1 to P9 and MO1, MO2 & 3 series and MOs4 to 6. 5. After the closure of evidence on behalf of the prosecution, the 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 adduce ``` CRL.A NO. 1684 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** evidence, if any, they 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 55(i) of the Abkari Act and convicted them thereunder. 6. Heard Sri. Dalbi Emmanual Palamoottil, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The impugned judgment of conviction and sentence is challenged on the ground that the prosecution has not succeeded in proving that the arrack allegedly seized from the possession of the accused eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellants relied on the following circumstances to contend that the contraband allegedly seized from the place of occurrence was not analysed in the Chemical Examiner’s Laboratory. ``` CRL.A NO. 1684 OF 2007 ``` ..5.. (a) Ext.P1 seizure mahazar does not contain the nature and description of seal stated to have been affixed on the bottle containing the sample. (b) The prosecution failed to explain the custody of the sample during the interregnum from 19.03.2004 to 23.03.2004. (c) 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 changed or tampered with. 9. At the time of the alleged seizure, the Detecting Officer had prepared Ext.P1 seizure mahazar which does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 10. In **Bhaskaran v. State of Kerala** [2020 KHC 5296], this Court held that the nature of the seal used by ``` CRL.A NO. 1684 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 11. Ext.P9, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 19.03.2004 of Judicial First Class Magistrate, Idukki. The sample reached the laboratory only on 23.03.2004. Neither the Property Clerk of the Court nor Sri. K.D.Sajimon, the Excise Guard who delivered the sample to the laboratory was examined by the prosecution. Therefore, the custody of the sample during the interregnum from 19.03.2004 to 23.03.2004 remains unexplained. 12. 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 ``` CRL.A NO. 1684 OF 2007 ``` ..7.. or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable 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.” 13. 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. 14. The non-examination of the officials who handled the sample during its transit from the Court to the laboratory leads to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v.** ``` CRL.A NO. 1684 OF 2007 ``` ..8.. ## **Daulat Ram [AIR (1980) SC 1314].** 15. In the instant case, the prosecution could not establish that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 16. 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]}. 17. 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. Therefore, the appellants/accused are entitled to the benefit of doubt. ``` CRL.A NO. 1684 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/- **K. BABU, JUDGE** kkj