Biju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944 CRL.A NO. 2314 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 598/2003 OF ADDITIONAL SESSIONS COURT FAST TRACK (ADHOC), MAVELIKKARA CP 44/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,** ## **CHENGANNUR** ## **APPELLANT/ACCUSED:** **BIJU, S/O ANANDAN THEKKMUKATH THEKKETH, KARAZHMA SOUTH MURI, CHENNITHALA VILLAGE (FROM BINU BHAVAN, ARATTUPUZHA VILLAGE) ALAPPUZHA DISTRICT BY ADV SRI.S.SHANAVAS KHAN** ## **RESPONDENT/COMPLAINANT:** **THE 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** **25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOW** ING: Crl.Appeal No. 2314 of 2008 **2** **K.BABU, J** . -------------------------------------Criminal Appeal No. 2314 of 2008 --------------------------------------Dated this the 25[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.09.2008, in S.C.No.598/2003, passed by the Additional Sessions Court Fast Track (Ad hoc), Mavelikara, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act and was sentenced to undergo rigorous imprisonment for a term of six months and to pay a fine of Rs.1,00,000/-. 3. The prosecution case is that the accused was found in possession of 6500 ml of arrack in 65 plastic covers along the road leading to Madathikkadavu at Karazhma Kizhakkummuri of Chennithala Village on Crl.Appeal No. 2314 of 2008 **3** 14.11.2001 at 5.30 pm. 4. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-II, Chengannur. The case was committed to the Sessions Court, Alappuzha 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 8(2) and 55(a) 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. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MOs 1 and 2. 6. 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 **4** Crl.Appeal No. 2314 of 2008 Section 232 Cr.P.C. and found that there is 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. From the side of the defence DW1 was examined. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. He was acquitted of the offence under Sectionn 55(a) of the Abkari Act. The accused was sentenced to undergo rigorous imprisonment for a term of six months and to pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. 7. Heard Smt.S.Indu, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant challenged the impugned judgment on the following **5** Crl.Appeal No. 2314 of 2008 ## grounds: 1. The delay in production of the sample and other articles seized from the place of occurrence has not been satisfactorily explained by the prosecution. 2. The prosecution has not succeeded in establishing that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The Excise team led by Excise Preventive Officer, Mavelikara Excise Range (PW1) seized the contraband substance from the possession of the accused on 14.11.2001. The sample and other articles reached the Court only on 16.11.2001. This is evident from Ext.P6, the list of articles, produced before the Court. The prosecution made an attempt to contend that the articles including the sample reached the Court on 15.11.2001. Prosecution examined the property clerk of the Court (PW6), who stated that the property reached **6** Crl.Appeal No. 2314 of 2008 the Court on 15.11.2001 itself. While examining in cross, PW6 stated that the date endorsed on the property list would be the date on which the article reached the Court. She made it clear that only after entering the date of receipt of the articles in the list of property corresponding entries will be made in the property register. Prosecution relied on Ext.P6(a), a copy of the property register where there is an entry that the properties were received on 14.11.2001. In Ext.P6, list of property there is specific mention indicating receipt of the properties on 16.11.2001. Therefore, the oral evidence of PW6 to the effect that articles reached the Court on 15.11.2001 is not credible. The necessary inference is that the articles including the sample reached the Court only on 16.11.2001. Prosecution has not offered any satisfactory explanation for the delay in production of the sample and the other articles before the Court. 10. On the question of delay in production of the **7** Crl.Appeal No. 2314 of 2008 properties, the Division Bench of this Court in **Ravi v. State of Kerala & another** (2011(3) KHC 121) held thus: “8. We therefore, answer the reference as follows: 1. 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.” 11. There is no satisfactorily 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. 12. The detecting officer has not produced the specimen of the seal stated to have been affixed on the **8** Crl.Appeal No. 2314 of 2008 sample before the Court. Ext.P1 seizure mahazar does not contain the nature and description of the seal used by the detecting officer. No forwarding note/requisition for sending sample to the Laboratory was produced and marked in this case. 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 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. **9** Crl.Appeal No. 2314 of 2008 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 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 Crl.Appeal No. 2314 of 2008 **10** 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 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. In **Rajamma v. State of Kerala** (2014 (1) KLT 506), this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample **11** Crl.Appeal No. 2314 of 2008 seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. 18. In **Ramachandran v. State of Kerala [2021 (1) KLT 793]** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. (vide: **Baburaj v.State of Kerala** [2021 (6) KLT 416]) 19. In the present case, PW5, Excise Inspector, Mavelikkara Range has given evidence that the sample was forwarded to the Court on 15.11.2001 through Excise Guards by name Sadasivan Pillai and Alex. This Court has concluded that the sample reached the Laboratory only on 16.11.2001. These two Excise Guards were not **12** Crl.Appeal No. 2314 of 2008 examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The resultant conclusion is that Ext.P7 certificate of chemical analysis has no evidentiary value. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 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, not guilty of the offence punishable under Section 8(2) of the Kerala Abkari Act. He is acquitted of the charge. He is set at liberty. ## The appeal is allowed as above. Sd/K.BABU, JUDGE **rpk**