Chandran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 21[ST] DAY OF JUNE 2023 / 31ST JYAISHTA, 1945 ``` ## **`CRL.A NO. 1022 OF 2006`** ``` AGAINST THE ORDER/JUDGMENTSC 316/2002 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC), MAVELIKKARA CP 113/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ``` ## **`CHENGANNUR`** ## **`APPELLANT/S:`** ``` CHANDRAN CHENNITHALA VILLAGE,, ORIPURAM MURI, MAVELIKARA. ``` ``` BY ADV SRI.JOHN BRITTO ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SANGEETHA RAJ PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.06.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1022 OF 2006 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 15.05.2006, passed by the Additional District & Sessions Court, Fast Track (Adhoc), Mavelikara in Sessions Case No.316 of 2002, 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. One Lakh. 2. The prosecution case is that on 02.02.2000 at 5.15 pm the accused was found in possession of 1½ litres of illicit arrack at Chennithala 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 ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** 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 P8 and MO 1. 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. On the side of the defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence punishable under ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. John Britto, the learned counsel appearing for the appellant/accused and Sri Sangeetha.N. Raj, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges 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. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (i) Ext. P1 seizure mahazar does not contain the nature and description of the seal stated to ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** have been affixed on the bottle containing the sample. - (ii) There is nothing to show that the specimen seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory for comparison. 9. The alleged seizure and arrest were effected on 02.02.2000 by the Preventive Officer, Mavelikara Excise Range Office (PW1). The Detecting Officer had drawn sample from contraband seized from the scene of occurrence. He had also prepared Ext.P1 mahazar to evidence seizure. The nature of the seal stated to have been affixed on the bottle containing the sample has not been narrated in Ext.P1 Mahazar. The specimen of the seal has not been produced before the Court. There is also nothing to show that the specimen seal was forwarded to the Chemical Examiner for comparison. The ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** forwarding note which contains the nature of the seal used has not been produced and marked. 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 satisfy the genuineness of the sample produced in the Court. 11. 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. 12. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which forwarding ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 8] intentionally omitted <==** 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. 13. The sample remained in the custody of the Property Clerk of the Court till 18.02.2000, the day on which the same was sent to the Chemical Examiner’s Laboratory. The sample reached the laboratory only on 19.02.2000 through one Abdul Haq, an Excise Guard. Neither the Property Clerk of the Court nor the Excise Guard who delivered the sample to the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of those officials who handled the sample during its transit from the Court to the laboratory is fatal ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 14. The prosecution has not succeeded in establishing the link evidence connecting the accused with the contraband seized and the sample analysed in the laboratory. 15. 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 found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the appellant/accused is set aside ; (iii) The accused is acquitted of the offence alleged ; ``` CRL.A NO. 1022 OF 2006 ``` **==> picture [20 x 9] intentionally omitted <==** (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj