Chandran v. State

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 15[TH] DAY OF SEPTEMBER 2022 / 24TH BHADRA, 1944 CRL.A NO. 2960 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 27.11.2008 IN SC 104/2008 OF THE SESIONS COURT, KALPETTA ``` ## **`APPELLANT/ACCUSED NO.2:`** ``` CHANDRAN, S/O CHATHAN, VINNAMPARAMBIL HOUSE, CHELLANGODE POST, VADERIVALAVU BHAGOM, MOOPAINADU VILLAGE, WAYANAD DISTRICT. ``` ``` BY ADV SRI. GEORGE MATHEWS ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE – EXCISE INSPECTOR, KALPETTA EXCISE RANGE OFFICE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2960 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2960 of 2008 --------------------------------------------- Dated this the 15[th] day of September , 2022 ## **JUDGMENT** This appeal is directed against the judgment dated 27.11.2008 passed by the Sessions Court, Kalpetta, in S.C.No.104/2008. The appellant is accused No.2 in this case. He was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs. One Lakh. 2. The prosecution case is that the appellant/accused No.2 and the other two accused on 14.10.2006 at 4.15 hours, were found in possession of 3.5 litres of arrack at Mooppainadu in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 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 them for the offence punishable under ``` Crl.A.No.2960 of 2008 ``` ``` 3 ``` Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they 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 MOs 1 to 4. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused No.2 guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. Accused Nos. 1 and 3 were found not guilty of the offence punishable under Section 8(2) of the Abkari Act and they were acquitted. 6. The judgment of conviction and sentence is challenged 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.2960 of 2008 ``` ``` 4 ``` 7. Heard Sri. George Mathew, the learned counsel appearing for the appellant/accused No.2 and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused No.2 relied on the following circumstances to substantiate his contentions: - (a) The bottles containing the sample were marked as A1 and B1, whereas the Chemical Examiner received the bottles marked as 1 and 2. - (b) The prosecution failed to offer any satisfactory explanation for custody of the bottles containing the sample during the period from 14.10.2006 to 24.11.2006. 9. The seizure was effected by the Excise Inspector, Kalpatta, Excise Range (PW1). According to PW1, he had collected sample in two 375 ml bottles and marked them as A1 and B1 respectively. Ext.P5, Property List also shows that two bottles containing the sample marked as A1 and B1 respectively were produced before the Court. 10. Ext.P9, Certificate of Chemical Analysis shows that two ``` Crl.A.No.2960 of 2008 ``` ``` 5 ``` sealed bottles marked as 1 and 2 were subjected to analysis in the Chemical Examiner’s Laboratory. 11. The learned counsel for the appellant/accused No.2 contended that as the prosecution failed to offer any explanation for the discrepancy in the marking on the bottles, the possibility of the sample being changed or tampered with cannot be ruled out. 12. I find substantial force in the arguments of the learned counsel for the appellant/accused No.2. 13. Ext.P5, Property List shows that the bottles containing the samples were received in the Court by the Head Clerk concerned. Ext.P9 shows that the bottles containing the sample were delivered in the laboratory by Sri.N.P.Sivaraman, an Excise Guard. The official who forwarded the bottles containing the sample to the laboratory and the Excise Guard who delivered the sample to the laboratory and the Chemical Examiner who received the bottles containing the sample were not examined to clarify the discrepancy of the marking on the bottles containing the sample. The non-examination of those officials is fatal to the prosecution as it is a failure on the part of the prosecution to rule out the possibility of sample being changed or tampered with during its transit from the Court to the Laboratory. This view is fortified by ``` Crl.A.No.2960 of 2008 ``` ``` 6 ``` ## the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)].** 14. Yet another aspect that requires consideration is the non-explanation regarding the custody of the samples during the period from 14.10.2006 to 24.11.2006. 15. The prosecution has not adduced any evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. 16. Ext.P9, the Certificate of Chemical Analysis shows that as per letter dated on 14.10.2006 the sample was forwarded to the laboratory. Ext.P9 further shows that the sample reached the laboratory on 24.11.2006. Absolutely, there is no explanation for the custody of the sample during the interregnum from 14.10.2006 to 24.11.2006. 17. 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.” ``` Crl.A.No.2960 of 2008 ``` ``` 7 ``` 18. 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 tamper-proof condition. 19. In the present case non-examination of the officials who handled the sample during its transit from the Court to the laboratory leads to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 20. In the instant case as prosecution has not succeeded in establishing that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P9, Certificate of Chemical Analysis has no evidentiary value. 21. 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. ``` Crl.A.No.2960 of 2008 ``` ``` 8 ``` 22. 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]}. 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. Accused No.2 is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 24. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused No.2 is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK