Chandran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 26[TH] DAY OF FEBRUARY 2024 / 7TH PHALGUNA, 1945 ``` ``` CRL.A NO. 1445 OF 2009 ``` ``` AGAINST THE JUDGMENT IN SC 457/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (FAST TRACK)-II, PALAKKAD APPELLANT/ACCUSED: ``` ``` CHANDRAN AGED 65 YEARS S/O.KITTA, KADAVATHU VEEDU, MANIYATHUPARAMBU, THARUR, ALATHUR. ``` ``` BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA EXCISE INSPECTOR, ALATHUR EXCISE RANGE,, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR MAYA M N ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ## **`CRL.A NO. 1445 OF 2009`** ..2.. ## **K. BABU, J ------------------------------------------------Crl Appeal No.1445 of 2009 ------------------------------------------------Dated this the 26[th] day of February, 2024** Aggrieved by the judgment dated 09.07.2009 passed by the Additional Sessions Court, Fast Track-II, Palakkad in Sessions Case No.457 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 03.03.2006 at 11.30 a.m., the accused was found in possession of wash in two plastic urns having the capacity of 15 litres each at his residence bearing door No.III/500 at Manniyathparambu in Tarur Village of Alathur Taluk in violation of the provisions of the Abkari Act. ``` CRL.A NO. 1445 OF 2009 ``` **==> picture [20 x 9] intentionally omitted <==** 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(g) 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 55(g) 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 P10 and MO1 series. 5. After the closure of evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. were 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. 1445 OF 2009 ``` **==> picture [20 x 9] intentionally omitted <==** 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 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellant and Smt. Maya, 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. Ext.P4 seizure mahazar does not contain the nature and description of the seal stated to have been ``` CRL.A NO. 1445 OF 2009 ``` **==> picture [20 x 8] intentionally omitted <==** affixed on the bottle containting the sample. The alleged seizure was effected on 03.03.2006. The petitioner was arrested from the place of occurrence. The Detecting Officer had drawn sample from the bulk quantity of wash recovered from the place of occurrence. The sample was produced before the Court on 03.03.2006. The Detecting Officer had not produced the speciment of the seal along with the properties produced before the Court which is evident from Ext.P6 property list. There is no other material to show that the specimen of the seal was produced before the Court along with the sample. 9. The Junior Superintendent of the Court received sample. It remained in the custody of the Property Clerk till 15.03.2006. The sample was forwarded to the Chemical Examiner’s Laboratory on 15.03.2006. An Excise Guard by name Prabha G. delivered the sample before the laboratory on ``` CRL.A NO. 1445 OF 2009 ``` **==> picture [20 x 9] intentionally omitted <==** ## 16.03.2006. 10. It is contended that the various officials who handled the sample during its transit from the Court to the laborartoy were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The Junior Superintendent of the Court, the Property Clerk and the Excise Guard by name Prabha G. who delivered the sample in the laboratory were not examined by the prosecution. Non-examination of these officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. 11. 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.** ``` CRL.A NO. 1445 OF 2009 ``` ..7.. **Daulat 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 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 ``` CRL.A NO. 1445 OF 2009 ``` **==> picture [20 x 9] intentionally omitted <==** 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)** . 12. In the instant case 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.P10 Certificate of Chemical Analysis has no evidentiary value. 13. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. 14. 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 appellants/saccused are therefore found not guilty of the offences punishable ``` CRL.A NO. 1445 OF 2009 ``` **==> picture [20 x 9] intentionally omitted <==** under Section 55(g) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offences alleged; - (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