Chandran v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 ``` ``` CRL.A NO. 949 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 31.03.2009 IN SC NO.933 OF 2002 OF ADDITIONAL DISTRICT COURT (ADHOC) III, THIRUVANANTHAPURAM APPELLANT/S: ``` ``` CHANDRAN VETTUKADU VEEDU, PAZHAYA UCHAKKADA,, KARODE DESOM,, KARODE VILLAGE,, NEYYATTINKARA TALUK. BY ADV SRI.M.SREEKUMAR ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA ``` ``` THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY GOVERNMENT PLEADER SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.949 of 2009 2 ## **K. BABU, J** ------------------------------------------------- ## **Crl Appeal No.949 of 2009** ------------------------------------------------- Dated this the 5[th] day of April, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 31.03.2009, passed by the Additional Sessions Court (Fast Track -III), Thiruvananthapuram in S.C.No. 933/2002, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.04.1998 at 11.00 a.m., the accused was found in possession of 4.5 litres of arrack at New Uchakkada in Thirupuram in violation of the provisions of the Abkari Act. Crl.A.No.949 of 2009 3 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(i) 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 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 5 and proved Exts.P1 to P8 and MO1. 5. After the closure of 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 Crl.A.No.949 of 2009 4 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 punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard the learned counsel appearing for the appellant/accused and 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 seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: Crl.A.No.949 of 2009 5 (i) The detecting officer had not prepared seizure mahazar at the scene of occurrence. (ii) The specimen of the seal was not produced before the Court. (iii)The forwarding note was not produced and marked. (iv)The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The detecting officer had not prepared seizure mahazar at the scene of occurrence, which is a contemporaneous document to evidence seizure. He has also not produced the specimen of the seal before the Court at the time of production of properties before the Court and has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court to establish the genuineness of the Crl.A.No.949 of 2009 6 sample produced. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison. The forwarding note which contains the specimen of the seal used has not been produced and marked. 10. 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. 11. 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 tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage Crl.A.No.949 of 2009 7 when the contraband reaches the laboratory is required to be established by the prosecution. 12. 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 tamperproof condition. Relying on **State of Rajasthan 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 Crl.A.No.949 of 2009 8 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 only if the said act was shown to have been performed. This Court specified that the presumption under S. 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).** 13. 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. Crl.A.No.949 of 2009 9 14. 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. ## 15. In **Ramachandran v. State of Kerala (2021** **(1) KLT 793)** while dealing with a case in which forwarding 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. Crl.A.No.949 of 2009 10 16. A survey of the precedents on the subject leads to the conclusion that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 17. The sample was received in the Court by the Junior Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in the laboratory by an Excise Guard by name Sri. Sukumaran Nair. The Junior Superintendent of the Court and Sri. Sukumaran Nair, the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during the course of its transit from the Court to the laboratory is fatal to the Crl.A.No.949 of 2009 11 prosecution as prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)** . 18. The resultant conclusion is 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. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 19. 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. Crl.A.No.949 of 2009 12 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 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. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per the interim orders of the Court shall be disbursed to him as per law. The Criminal Appeal is allowed as above. Sd/- **K.BABU, JUDGE** kkj