Biju s/o Jose v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 CRL.A NO. 1679 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 535/2006 OF ADDITIONAL SESSIONS COURT ``` ``` (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/ACCUSED:`** ``` BIJU,S/O. JOSE, NIRAPPEL HOUSE, MUTTOM KARA, MUTTOM VILLAGE,, THODUPUZHA TALUK. BY ADVS. C.M.TOMY MATHEW SKARIA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A NO. 1679 OF 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1679 of 2007 --------------------------------------------- Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 21.08.2007, passed by the Additional Sessions Court (Adhoc-II), Thodupuzha, in Sessions Case No.535 of 2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(i) 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 29.01.2005 at 5.30 p.m., the accused was found engaged in sale of Indian Made Foreign Liquor at Muttom, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55 (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, charge was framed against him for the offence punishable under Section 55(i) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for ``` CRL.A NO. 1679 OF 2007 ``` ``` 3 ``` the aforesaid offence. 4. The prosecution examined PWs 1 and 2 and proved Exts. P1 to P7 and MOs 1 and 2 and MO 3 series. 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 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 55(i) of the Abkari Act and convicted him thereunder. 6. Heard Sri. C.M. Tomy, 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 challenged the judgment of conviction and sentence on the following grounds:- 1) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. (2) The prosecution failed to establish that the ``` CRL.A NO. 1679 OF 2007 ``` ``` 4 ``` contraband substance seized from the possession of the accused eventually reached the Chemical Examiner’s Laboratory. (3) The delay in the analysis of the sample has not been explained by the prosecution. 8. The alleged seizure and arrest were effected on 29.01.2005 by the Sub Inspector of Police, Kanjar Police Station (PW2). The accused was produced before the Court on 30.01.2005. The properties, including the bottles containing the sample were produced before the Court only on 31.01.2005. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. 9. In **Ravi v. State of Kerala** [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: 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.” ``` CRL.A NO. 1679 OF 2007 ``` ``` 5 ``` 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 production of the property. 10. 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. 11. Ext.P1, the seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW2, the detecting officer has not given evidence as to the nature and description of the seal used. 12. The sample was produced before the Court on 31.01.2005. The Junior Superintendent of the Court received the sample. The date on which the sample was forwarded to the Chemical Examiner's Laboratory is not evident from the materials placed before the Court. Ext.P6, copy of the forwarding note, is silent regarding the person with whom the sample was forwarded to the laboratory. The sample also remained in the custody of the Property Clerk. Ext.P7 Chemical Analysis Report shows that the sample was handed over to the laboratory by Sri.Surendran N.S.. The Junior Superintendent of the ``` CRL.A NO. 1679 OF 2007 ``` ``` 6 ``` Court, the Property Clerk of the Court, the police official who received the sample from the Court and Sri.Surendran N.S., the police constable handed over the sample to the laboratory, were not examined by the prosecution. The omission on the part of the prosecution in examining those officials who handled the sample during its transit from the Court to the laboratory, would lead to the conclusion that the 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. 14. A legal obligation is cast on the prosecution to prove that 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 it 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 ``` CRL.A NO. 1679 OF 2007 ``` ``` 7 ``` 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. 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 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)** . 16. 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 ``` CRL.A NO. 1679 OF 2007 ``` ``` 8 ``` seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 17. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 03.02.2005, it was subjected to analysis only on 27.06.2006. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the Court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 18. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 19. Since the prosecution failed to establish the tamper proof despatch of the sample to the laboratory, Ext.P7 certificate of chemical analysis has no evidentiary value. 20. 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 ``` CRL.A NO. 1679 OF 2007 ``` ``` 9 ``` proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 21. 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]}. 22. 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. 23. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK