Bijukumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 9[TH] DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944** ## **CRL.A NO. 881 OF 2007** **AGAINST THE JUDGMENT DATED 30TH APRIL 2007 IN SC 577/2003 OF** **ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA** ## **APPELLANT/ACCUSED:** **BIJUKUMAR** **S/O.THANKACHAN, THACHAYIL KIZHAKKETHIL, ARUNOOTTIMANGALAM, MURI, VETTIYAR VILLAGE, MAVELIKKARA.** **BY ADVS. SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.S.SANKARAN THAMPI SRI.V.VENUGOPAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR OF MAVELIKKARA RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.** **REKHA- SENIOR GOVERNMENT PLEADER** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.881 of 2007 2 **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.881 of 2007** --------------------------------------- Dated this the 9[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 30.04.2007, passed by the Additional District and Sessions Court (Adhoc), Mavelikara in S.C.No.577/2003, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 22.09.2001 at 5.30 p.m the accused was found in possession of 2 litres of illicit arrack at Vettiyar 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 8(2) and 55(a) 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. Crl.A No.881 of 2007 3 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. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MOs 1 to 3. 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 convicted the appellant for the aforesaid offences. 6. Heard Sri.B.Unnikrishna Kaimal, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.881 of 2007 4 7. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the Chemical Examiner's laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions. - a) The delay in the production of the properties including the sample has not been explained. - b) Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - c) The prosecution failed to explain the custody of sample during the period from 04.10.2001 to 04.12.2001. - d) Forwarding note/ requisition for sending sample has not been produced and marked. 9. The alleged seizure was effected on 22.9.2001 by the Preventive Officer, Excise Range Office, Mavelikara (PW1). PW1 had prepared Ext.P1 seizure mahazar. PW1 had drawn the sample from the scene of occurrence. Ext.P6, list of the Crl.A No.881 of 2007 5 properties shows that the properties including sample were received by the Court only on 01.10.2001. The prosecution has not given any satisfactory explanation for the delay in the production of properties including the sample before the Court. 10. On the question of delay in the production of properties, a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KHC 121]** held thus: “8. We, therefore, answer the reference as follows: 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.” (emphasis supplied) 11. 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. Crl.A No.881 of 2007 6 12. 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 the sample could not be ruled out. 13. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. The Detecting Officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court and forwarded to the laboratory. The production of the specimen seal is highly required to ensure the genuineness of the sample produced before the Court. The specimen of the seal is also required to ascertain the genuineness of the sample placed for examination in the laboratory. The requisition for sending sample/forwarding note had not been produced and marked so as to ensure that the Chemical Examiner was able to verify the genuineness of the sample produced for examination. Crl.A No.881 of 2007 7 14. In the present case the prosecution has not cared to comply with the above formalities so as to establish the chain of custody of the sample during its transit from place of occurrence to the Court and then to Chemical Examiner's Laboratory. 15. 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. 16. 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 seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. ## 17. In **Ramachandran v. State of Kerala (2021 (1)** **KLT 793)** while dealing with a case in which forwarding Crl.A No.881 of 2007 8 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. 18. Yet another aspect that requires consideration is that the prosecution failed to explain the custody of the sample during the interregnum from 4.10.2001 to 4.12.2001. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. Ext.P8 further shows that the sample was delivered to the laboratory only on 04.12.2001.There is no explanation for the custody of the sample during the period from 4.10.2001 to 4.12.2001. Ext.P8 shows that Sri.Sadasivan Pillai, an Excise guard delivered the sample in the laboratory. Sri. Sadasivan Pillai has not been examined as a witness. The property clerk who sent the sample to the laboratory was also not examined. Crl.A No.881 of 2007 9 ## 19. 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 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.”_ _20._ 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 tamperproof condition. 21. The resultant conclusion is that the prosecution failed to establish tamper-proof despatch of the sample from the Court to the Chemical Examiner's laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.881 of 2007 10 22. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband substance seized and the sample analysed in the laboratory. Therefore, the accused is entitled to the benefit of doubt arising from the absence of the link evidence as discussed above. 23. 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. 24. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. **==> picture [42 x 13] intentionally omitted <==** **K.BABU JUDGE** AP