Bobby, s/o Joseph v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 ``` ``` CRL.A NO. 2956 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 72/2008 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC)-II, KOTTAYAM ``` ## **`APPELLANT/ACCUSED:`** ``` BOBBY,S/O JOSEPH KIZHAKKEMECHERIYIL VEEDU, KOOVAMKULAM KARA, VELIYANNUR VILLAGE. ``` ``` BY ADV S.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.281 OF 2006 OF KURUVILANGADU POLICE STATION). ``` ## **`BY ADV PUBLIC PROSECUTOR`** ## **`OTHER PRESENT:`** ## **`SMT.REKHA S SR PP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2956 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 2956 OF 2008** =================== Dated this the 28[th] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 29.11.2008, passed by the Additional District and Sessions Judge, (Adhoc)-II, Kottayam in S.C.No.72/2008, the accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 28.12.2006 at 8.30 p.m., the accused was found possessing 8 litres of arrack for sale in Monippally village, in contravention of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional ``` CRL.A NO. 2956 OF 2008 ``` ``` 3 ``` 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 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P6, MO 1, MO 2 series and MO 3. Exts. X1 and X2 were marked as Court exhibits. 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. On the side of the defence, Exts. D1 and D2 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the ``` CRL.A NO. 2956 OF 2008 ``` ``` 4 ``` aforesaid offence. 6. Heard Sri. S. Rajeev, 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: - (i) The arrest of the accused from the place of occurrence as alleged by the prosecution is doubtful. - (ii) The prosecution failed to establish the genuineness of the sample produced before the Court and forwarded to the Chemical Examiner's Laboratory. 8. The alleged seizure and arrest were effected on 23.12.2006. PW6, Sub Inspector of Police, Kuravilanagad, the Detecting Officer stated that, the accused was arrested from the place of occurrence along with the contraband substance. The arrest of the accused is challenged on the ``` CRL.A NO. 2956 OF 2008 ``` ``` 5 ``` ground that Ext.P5 arrest memo contains the number of crime registered against the accused. The learned counsel contented that, this is a circumstance that indicates the arrest was doubtful. While dealing with a similar fact situation this Court in **Santhosh v. State of Kerala** [2021 ## (5) KHC 214] held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)]” 9. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P5 arrest memo, a doubt arises as ``` CRL.A NO. 2956 OF 2008 ``` ``` 6 ``` to the manner in which the seizure and arrest were effected. 10. The learned counsel for the appellant/accused further contended that, the prosecution failed to establish the genuineness of the properties, including the sample, produced before the Court and forwarded to the Chemical Examiner's laboratory. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contention that the prosecution has not succeeded in proving that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. a. The delay in the production of sample has not been satisfactorily explained by the prosecution. b. The nature and description of the seal stated to have been affixed on the bottles containing the sample have not been narrated in Ext.P1 seizure mahazar. c. The specimen of the seal was not produced before the Court at the time of production of the articles ``` CRL.A NO. 2956 OF 2008 ``` ``` 7 ``` including the sample so as to ensure the genuineness of the sample produced. d. The prosecution has not explained the custody of the sample during the period from 25.04.2007 to 04.05.2007. 11. Ext.P1, Seizure Mahazar prepared by the Detecting Officer at the scene of occurrence does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. 12. PW6, Detecting Officer has not given evidence as to the nature and description of the seal used. No specimen seal was produced before the Court at the time of production of the properties including the sample before the Court. The Detecting Officer had drawn sample at the place of occurrence on 23.12.2006. But the bottles containing the sample were produced before the Court only on 26.04.2006 which is evident from Ext.X2 the list of properties produced by the Detecting Officer. PW3, the property clerk of the Court had also given evidence that the ``` CRL.A NO. 2956 OF 2008 ``` ``` 8 ``` properties including the sample were produced before the Court only on 26.12.2006. The explanation offered by the prosecution is that the properties including the sample were produced before the learned Magistrate on 24.12.2006 itself. The learned Magistrate directed the Detecting Officer to produce the sample before the Court on 26.12.2006. This explanation is not supported by any credible evidence and also the explanation is not satisfactory. 13. 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) 14. 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 ``` CRL.A NO. 2956 OF 2008 ``` ``` 9 ``` explanation for the delay when there is delayed production of the property. 15. 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. 16. Ext.P6 Certificate of Chemical Analysis shows that the bottles containing the sample were forwarded to the laboratory as per letter dated 25.04.2007 of the Judicial First Class Magistrate’s Court, Pala. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. In the absence of evidence regarding the date on which the sample was forwarded to the laboratory the necessary inference is that the sample was forwarded on 25.04.2007. Ext.P6 Certificate of Chemical Analysis shows that the bottles containing the sample reached the laboratory only on 04.05.2007. There is absolutely no explanation for the ``` CRL.A NO. 2956 OF 2008 ``` ``` 10 ``` delay in bringing the sample to the laboratory after the same was obtained from the Court. In fact, the custody of the sample during the interregnum from 25.04.2007 to 04.05.2007 remained unexplained. The police Official who delivered the sample in the laboratory has not been examined as a witness. 17. 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. 18. 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 tamper-proof 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 ``` CRL.A NO. 2956 OF 2008 ``` ``` 11 ``` prosecution. 19. 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 tamper-proof 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 ``` CRL.A NO. 2956 OF 2008 ``` ``` 12 ``` only if the said act was shown to have been performed. This Court specified that the presumption under Section 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]** . 20. 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. 21. In the instant case the prosecution failed to show that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value to connect the accused ``` CRL.A NO. 2956 OF 2008 ``` ``` 13 ``` with the contraband seized. 22. 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 proof by itself and that the sample seized and that tested have to be corelated. 23. 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]}. 24. 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 ``` CRL.A NO. 2956 OF 2008 ``` ``` 14 ``` arising from the absence of link evidence as discussed above. 25. The upshot of the above discussion is that the conviction and sentence 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 alleged. He is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per directions of this Court shall be disbursed to the appellant. The appeal is allowed as above. **Sd/-** **K.BABU, JUDGE** LU