Criminal Appeal No. 2498 of 2007 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** ## **CRL.A NO. 2498 OF 2007** **AGAINST THE JUDGMENT IN SC 563/2006 OF IV ADDITIONAL SESSIONS** ## **COURT (ADHOC), THODUPUZHA** **CP 50/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, TPA** ## **APPELLANT/ACCUSED:** 1 JOJO, S/O. VARGHESE, MANACKAPARAMBIL, KANJIKUZHI VILLAGE, THODUPUZHA TALUK. 2 BABY, S/O. KURIAKOSE, PUTHUKAYIL HOUSE, AGED 1 YEARS MULLARINGADUKARA, VANNAPPURAM VILLAGE, THODUPUZHA TALUK. BY ADVS. SRI.C.K.VIDYASAGAR SRI.P.CHANDY JOSEPH ## **RESPONDENTS/COMPLAINANTS:** 1 STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA 2 EXCISE INSPECTOR, THODUPUZHA BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2498 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2498 of 2007 --------------------------------------Dated this the 25[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 30.11.2007, passed by the IV[th] Additional Sessions Judge (Adhoc-II), Thodupuzha in S.C.No.563/2006, the two accused have preferred this appeal. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 06.11.2003 at 1.30 a.m, the accused were found carrying two cans containing 5 litres of arrack each in front of the house of accused No.2 on the side of Chathamattom-Mullaringadu road. 3. After completing the investigation, final report was submitted against the appellants for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-I, Thodupuzha. The case was committed to the 3 Crl.A No.2498 of 2007 Sessions Court, Thodupuzha 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 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 4 and proved Exts.P1 to P8 and MOs 1 and 2. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were 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. On the side of the defence, DWs 1 and 2 were examined and Exts.D1 to D4 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offence. 6. Heard Sri. C.K.Vidyasagar, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Crl.A No.2498 of 2007 4 ## Public Prosecutor appearing for the respondents. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: - (a) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the - Chemical Examiner's laboratory. - (b) The prosecution has not offered any satisfactory explanation for the delay in the analysis of the sample. 8. PW1 the Excise Inspector, Thodupuzha detected the offence. The Excise team led by PW1, on 06.11.2003 found the accused in possession of two cans containing 5 litres of illicit arrack each. They were arrested from the place of occurrence. PW1 collected 200ml of liquor each contained in the cans to be used as sample. PW3 conducted the investigation and submitted final report. 9. The learned counsel for the appellants contended that the prosecution failed to establish the chain of evidence to ensure that the contraband substance allegedly seized from the place of 5 Crl.A No.2498 of 2007 occurrence eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. 10. Exhibit P5, the copy of the forwarding note does not contain the name of the Excise official with whom the sample was forwarded to the laboratory. The space meant for providing the sample seal was kept vacant. The learned Magistrate, who countersigned the forwarding note, did not mention the date on which he made his initials. There is nothing on record to show the date on which the sample was forwarded to the laboratory. While dealing with a similar fact situation, this Court in Kumaran v. State ## of Kerala [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Crl.A No.2498 of 2007 6 Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 11. In the instant case, the prosecution has neither examined the property clerk of the Court nor the Excise official concerned to prove the tamper-proof despatch of the sample to the laboratory. 12. The prosecution failed to establish that the specimen seal was forwarded to the Chemical Examiner to ensure the genuineness of the sample forwarded. 13. 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 Crl.A No.2498 of 2007 7 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. 14. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 15. 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. 16. The samples remained in the hands of the property clerk of the Court, the Excise official who received the same from the Court and Sri. M.M.Mohanan, the Excise official who delivered the Crl.A No.2498 of 2007 8 samples to the laboratory. None of these officials were examined by the prosecution to rule out the possibility of the samples being changed or tampered with. The necessary consequence is that the prosecution failed to establish the tamper-proof despatch of the samples to the laboratory. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 17. Yet another aspect that requires consideration is the delay in the analysis of the samples. The bottles containing the sample reached the laboratory on 20.11.2003. The samples were analysed in the laboratory only on 11.02.2005. The prosecution has not offered any explanation for the delay in the analysis of the samples. While dealing with the question of delay in the analysis of the sample this ## Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” Crl.A No.2498 of 2007 9 In the absence of any satisfactory evidence to convince the Court that the samples reached the laboratory in a tamper-proof condition, no evidentiary value can be given to Ext.P8, the certificate of chemical analysis. 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. 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 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 Crl.A No.2498 of 2007 10 seized and the samples analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellants/accused are, therefore, not guilty of the offence punishable under Section 8(2) of the Abkari Act. They are acquitted of the charge. They are set at liberty. ## The appeal is allowed as above. Sd/K.BABU, JUDGE KAS