C.A. Lakshmanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 14[TH] DAY OF OCTOBER 2022 / 22ND ASWINA, 1944 CRL.A NO. 2423 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 14.11.2006 IN SC 289/2002 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` C.A.LAKSHMANAN, S/O.APPUNNI, MUTTIL, WAYANAD DISTRICT ``` ``` BY ADV SRI.C.A.LAKSHMANAN (PARTY) ``` ## **`RESPONDENT/STATE:`** ``` THE STATE OF KERALA, REPRESENTED BY THE EXCISE RANGE OFFICER, KALPETTA - THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ``` BY ADV PUBLIC PROSECUTOR SMT.REKHA (SR.GP) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2423 of 2006 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2423 of 2006 --------------------------------------------- Dated this the 14[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 14.11.2006, passed by the Additional Sessions Court (Adhoc-II), Kalpetta in Sessions Case No.289 of 2002, the accused has preferred this appeal. The appellant/ accused was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 16.09.2000 at 1.00 p.m., the accused was found transporting 3 litres of illicit arrack at Kalpetta 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 Section 55(a) and 8(2) 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 ``` Crl.A.No.2423 of 2006 ``` ``` 3 ``` punishable under Section 58 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 P9, and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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 58 of the Abkari Act and convicted him thereunder. 6. Heard Smt.Sruthy Bhat, the learned Amicus Curiae appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned Amicus Curiae challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. ``` Crl.A.No.2423 of 2006 ``` ``` 4 ``` 8. The learned Amicus Curiae projected the following circumstances to contend that the prosecution failed to prove that the sample collected from the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. (a) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The delay in the production of the - properties before the Court has not been properly explained by the prosecution. (c) The custody of the sample during the interregnum from 19.09.2000 to 05.10.2000 remains unexplained. 9. Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. 10. 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 ``` Crl.A.No.2423 of 2006 ``` ``` 5 ``` satisfy the genuineness of the sample produced in the Court. 11. The alleged seizure was effected on 16.09.2000. The properties including the sample reached the Court only on 19.09.2000 as is evident from Ext.P8 property list. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties including the sample. 12. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “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.” (Emphasis supplied) 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. 13. 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 ``` Crl.A.No.2423 of 2006 ``` ``` 6 ``` tampering with samples could not be ruled out. 14. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P6 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 19.09.2000 of the Chief Judicial Magistrate, Kalpetta. Since the prosecution has not offered any evidence as to the date on which the sample was forwarded to the laboratory, the necessary inference is that the sample was forwarded to the laboratory on 19.09.2000, but the same reached the laboratory only on 05.10.2000. It is further seen that the sample was delivered to the laboratory by one Excise Guard by name T.C.Chandran. He has not been examined by the prosecution. 15. 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.” 16. In the absence of any satisfactory explanation for the ``` Crl.A.No.2423 of 2006 ``` ``` 7 ``` 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. 17. In the absence of any evidence as to the custody of the sample during the interregnum from 19.09.2002 to 05.10.2000, the necessary conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. The prosecution has not succeeded in showing that the contraband seized at the scene of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 18. 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 co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 19. 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 ``` Crl.A.No.2423 of 2006 ``` ``` 8 ``` 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]}. 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. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK