Criminal Appeal Nos. 2218 of 2008 and 1687 of 2008, Aji v State of Kerala; Francis @ Panchi and Bijoy v State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 CRL.A NO. 2218 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 224/2007 OF ADDITIONAL SESSIONS** **COURT (ADHOC-i), ERNAKULAM** **CP 2/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, ERNAKULAM** ## **APPELLANT/ACCUSED NO.3:** AJI, S/O AUGUSTY, PULIKKAL VEEDU, PUTHENVELIKKARA, NORTH PARAVUR, ERNAKULAM DISTRICT. BY ADV NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA S, SR PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2022, ALONG WITH CRL.A.1687/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.2218 & 1687 of 2008 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 CRL.A NO. 1687 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 224/2007 OF ADDITIONAL SESSIONS COURT (ADHOC-I), ERNAKULAM APPELLANT/ACCUSED NOS.1 & 2:** 1 FRANCIS @ PANCHI, AGED 44 YEARS, S/O.FRANCIS, PALLIPARAMBIL HOUSE, EDAYAKUNNAM, CHERANELLOOR, ERNAKULAM DISTRICT. 2 BIJOY, AGED 27 YEARS, S/O.BALAKRISHNAN MANCHERRY HOUSE, PUTHENVELIKKARA, NORTH PARAVUR, ERNAKULAM DISTRICT. BY ADV SRI.NIREESH MATHEW ## **RESPONDENTS/COMPLAINANT:** STATE OF KERALA, CIRCLE INSPECTOR OF POLICE, ERNAKULAM TOWN NORTH POLICE STATION, ERNAKULAM DISTRICT, REPRESENTED, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 30.06.2022, ALONG WITH CRL.A.2218/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A Nos.2218 & 1687 of 2008 3 ## K.BABU, J. -------------------------------------Criminal Appeal Nos.2218 & 1687 of 2008 --------------------------------------Dated this the 30[th] day of June, 2022 ## JUDGMENT These appeals arise from the judgment of the Additional Sessions Court (Adhoc-I), Ernakulam in S.C.No.224/2007. The appellants in Crl.Appeal No.1687/2008 are accused Nos.1 and 2 and the appellant in the other appeal is accused No.3. The appellants were convicted for the offence punishable under Sec.55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 31.12.2004 at 9.00 p.m accused Nos.1 to 3 were found in possession of 5 cans each containing 35 litres of spirit in a Maruthi Omni Van bearing registration No.KL-7/AN-5703. The vehicle was intercepted by the Sub Inspector of Police, Cheranalloor Police Station in front of Divine Nagar on the Ernakulam-Cheranalloor public road. After recovering 35 litres of spirit from the Maruthi Omni Van, based on the information given by accused No.1 the Police proceeded to the Crl.A Nos.2218 & 1687 of 2008 4 room allegedly owned by accused No.1 on the Mathai Manjooran road at Pachalam and recovered another 29 cans, each containing 35 litres of spirit. Altogether, the Police recovered 1190 litres of spirit. During the course of investigation, two more accused were arrayed. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 65 and 55(a) 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, charges were framed against accused Nos.1 to 4 and accused No.5 was discharged. 4. The prosecution examined PWs 1 to 15 and proved Exts.P1 to P26 and MOs 1 and 2 series. Exhibit C1 was marked as Court Exhibit. 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 Crl.A Nos.2218 & 1687 of 2008 5 evidence, if any, they may have in support thereof. On the side of the defence, Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court found accused Nos.1 to 3 guilty of the offence punishable under Sec.55(a) of the Abkari Act. The Trial Court acquitted accused No.4. 6. Accused Nos.1 to 3 are in appeal before this Court. 7. Heard Sri. Nireesh Mathew, the learned counsel appearing for the appellants/accused Nos.1 to 3 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: - (i) The very seizure of the contraband substance as alleged by the prosecution is doubtful. - (ii) The prosecution miserably failed to show that the spirit allegedly recovered from the place of - occurrence eventually reached the hands of the Chemical Examiner. 9. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions: - (i) Exhibit P1, the seizure mahazar prepared Crl.A Nos.2218 & 1687 of 2008 6 evidencing the alleged seizure of 35 litres of spirit from the Maruthi Omni Van, did not mention that the samples drawn from the contraband substance recovered were either sealed or labelled. - (ii) Exhibit P7, the seizure mahazar prepared in connection with the recovery of spirit from the room allegedly owned by accused No.1 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (iii) The delay of three days in producing the articles, including the samples, has not been satisfactorily explained by the prosecution. 10. As per the prosecution, samples were drawn in 34 bottles and those bottles were produced before the Court and forwarded to the Chemical Examiner for analysis. However, another set of 34 bottles, some of them were sealed but not opened, were before the Court during the trial and those bottles were marked as MO2 series. Crl.A Nos.2218 & 1687 of 2008 7 11. The alleged seizure was effected on 31.12.2004. The seizure was effected by PW12, the Sub Inspector of Police, Cheranelloor Police Station. According to PW12, he recovered 5 cans each containing 35 litres of spirit from the vehicle involved. He prepared Ext.P1 seizure mahazar to evidence seizure as alleged. PW12 collected samples in five bottles, each containing 375 ml of spirit. He has not narrated in Ext.P1 that at the time of drawing samples he had sealed those bottles. There is also no mention of the nature and description of any seal used by him. Thereafter, as per the prosecution case, PW1 searched the building allegedly owned by accused No.1 and recovered the rest of the spirit where also he had drawn samples in 29 bottles, each containing 375ml of spirit. PW12 prepared Ext.P4 search list and Ext.P7 seizure mahazar to evidence seizure as alleged. Either in Ext.P7 or Ext.P4 search list the detecting officer had not narrated the nature and description of the seal stated to have been affixed on the bottles containing the sample. 12. Exhibit P17 series are the lists of properties showing the production of articles, including the samples, before the jurisdictional Magistrate. Though the seizure was effected on Crl.A Nos.2218 & 1687 of 2008 8 31.12.2004, the articles, including the samples, were produced before the Court only on 03.01.2005. The detecting officer has not given any explanation as to the delay in the production of the samples before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 13. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. Crl.A Nos.2218 & 1687 of 2008 9 14. The learned counsel for the appellants contended that the prosecution has not offered any explanation as to how a set of 34 bottles allegedly containing spirit marked as MO2 series remained in the Court during trial. None of the prosecution records refer to a set of 34 bottles marked as MO2 series. 15. Going by the prosecution records, the detecting officer had collected samples in 34 bottles at the scene of occurrence and were produced before the Court as per Ext.P17 series property lists and those samples were forwarded to the Chemical Examiner's laboratory as per Ext.P16 forwarding note. Exhibit P24, the Certificate of Chemical Analysis, shows that 34 bottles marked as A to E and 1 to 29 were subjected to analysis in the Chemical Examiner's Laboratory. 16. The learned counsel for the appellants contended that in the absence of any evidence to show that the detecting officer had taken representative samples in 34 bottles at any stage of investigation, a doubt arises as to whether the samples drawn at the scene of occurrence were forwarded to the Chemical Examiner for analysis. As the prosecution has absolutely no explanation for the presence of a set of 34 bottles allegedly containing spirit before Crl.A Nos.2218 & 1687 of 2008 10 the Court, which were marked as MO2 series, there is no assurance that the samples drawn at the scene of occurrence eventually reached the Chemical Examiner's laboratory to form the basis of Ext.P24 Chemical Analysis Report. 17. It is also pertinent to note that the officials concerned, who dealt with the samples in the Court, and the Police Constable, who delivered the samples to the laboratory, were also not examined by the prosecution. The samples remained in the custody of the property clerk of the Court and a Police Constable No.4002, who delivered the bottles containing the sample to the laboratory as is seen from Ext.P24. None of these officials were examined by the prosecution to rule out the possibility of the samples being changed. 18. 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. 19. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the Crl.A Nos.2218 & 1687 of 2008 11 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. 20. 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 tamper-proof condition. Relying on State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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 reemphasized 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's case (supra), this Court further held that Courts could presume that an Crl.A Nos.2218 & 1687 of 2008 12 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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 21. In the instant case, the prosecution has failed to show that the samples drawn at the scene of occurrence were actually subjected to analysis in the laboratory. 22. 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. 23. The learned counsel for the appellants further raised another procedural irregularity which would vitiate the prosecution case. The learned counsel contended that without observing the procedures as contemplated in Section 53A of the Abkari Act, the detecting officer destroyed the residue of the spirit, after taking the Crl.A Nos.2218 & 1687 of 2008 13 samples at the scene of occurrence, itself. The learned counsel contended that the detecting officer should have followed the statutory mandates under Section 53A to dispose of the articles allegedly seized from the place of occurrence. The materials brought before the Court would reveal that the residue of the spirit after taking the samples was destroyed at the scene by the detecting officer. ## 24. Section 53A of the Abkari Act reads thus: “53A. Disposal of seized liquor, intoxicating drugs or articles.- (1) Notwithstanding anything contained in this Act, the State Government may having regard to the nature of the liquor, intoxicating drug, or article, its vulnerability to theft, substitution, constraints of proper storage space or any other relevant consideration, by notification in the official Gazette, specify such liquor, intoxicating drug or article which shall, as soon as may be after its seizure, be disposed of by the authorised officer referred to in section 67B, in such manner as the Government may, from time to time determine after following the procedure hereinafter specified. (2) Where any such notified liquor, intoxicating drug or, article has been seized under this Act, the authorised officer shall prepare an inventory of such liquor, intoxicating drug or article containing such details relating to their description, quality, quantity, mode of packing, marks, numbers of such other identifying particulars of the liquor, intoxicating drug or article or the packing containers in which they are kept, place of origin and other particulars, as the authorised officer may consider relevant to identify the liquor, intoxicating drug or article in any proceedings under this Act and make an application to any Magistrate having jurisdiction over the area where the seized liquor, intoxicating drug or articles or stored for the purpose of,- Crl.A Nos.2218 & 1687 of 2008 14 - (a) certifying the correctness of the inventory so prepared; or - (b) taking, in the presence of such Magistrate, photographs of such liquor, intoxicating drug or article and certifying such photographs as true; or - (c) Allowing to draw representative samples of such liquor, intoxicating drug or article in the presence of such Magistrate and certifying the correctness of any list of samples so drawn. - (3) Where an application is made under sub- section (2) the Magistrate shall, as soon as may be, visit the place where such liquor, intoxicating drug or articles and stored and take appropriate steps as specified in clauses (a), (b) and (c) of sub-section (2), and allow the application. - (4) Where any liquor or intoxicating drug or article under this Act has been kept under the custody of any Court in connection with any offence committed under this Act, before the commencement of the Abkari (Amendment) Act, 2003 or has been brought before a Magistrate without complying the procedure laid down in sub-section (2), the authorised officer shall obtain prior permission of the Court or Magistrate before initiating proceedings under subsection (2)." - (5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (Central Act 1 of 1872) or the Code of Criminal Procedure, 1973 (Central Act 2 of 1974), any Court trying an offence under this Act, shall treat the inventory, the photographs of liquor, intoxicating drug or article and any list of samples drawn under sub-sections(2) and (4) and certified by the Magistrate, as primary evidence in respect of such offence. 25. Going by Section 53A, any liquor, intoxicating drug or article, may be disposed of by the authorised officer referred to in Sec.67B following the procedures prescribed in sub-section (2) of Section 53A. In the present case, the prosecution has no case that Crl.A Nos.2218 & 1687 of 2008 15 the procedures as contemplated in Section 53A were followed. The Investigating Officer has not taken any steps to follow the procedures as provided under Section 53A. The Investigating Officer has only taken photographs of the articles allegedly seized and destroyed the spirit then and there. In Appu v. State of Kerala [2016 (5) KHC 310], this Court had occasion to consider the consequence of non-compliance of Sec.53A of the Abkari Act. In Appu's case (supra) this Court held that in a case where the articles were destroyed without following the procedures prescribed under Sec.53A it would be fatal to the prosecution. In Narayana Velichappada v. Sub Inspector of Police and Another [2007 (4) KHC 748], this Court held that non-production of the residue or any other material and destruction of the same without following the mandatory provisions contemplated under Sec.53 of the Abkari Act is fatal to the prosecution case. 26. 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 Crl.A Nos.2218 & 1687 of 2008 16 - v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 27. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the samples analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 28. 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. In the result, the appellants/accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS