Criminal Appeal Nos.395 & 398 of 2008, State of Kerala v. Shaji and others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 CRL.A NO. 395 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 243/2003 OF ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANT/ACCUSED NO.1:`** ``` SHAJI S/O GOPALAN, KALLIKKA HOUSE, VADAMA VILLAGE,, KUNNATHUKADU TALUK. ``` ``` BY ADV SRI.M.G.KARTHIKEYAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY CIRCLE INSPECTOR OF POLICE, MALA POLICE STATION,, THRISSUR DISTRICT, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SR PP SMT.REKHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2022, ALONG WITH CRL.A.398/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.395 & 398/2008 ..2.. ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 ``` ## **`CRL.A NO. 398 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 243/2003 OF ADDITIONAL DISTRICT COURT, THRISSUR ``` ## **`APPELLANTS/ACCUSED 3 TO 5:`** - `1 JAYAN` ``` S/O SANKARAN,ELANJIKODAN HOUSE, IRINJALAKKUDA VILLAGE,, DESOM, MUKUNDAPURAM TALUK, THRISSUR DISTRICT. ``` - `2 BABU` ``` S/O THOMAS, VETTUKATTIL HOUSE, BHARANANGANAM VILLAGE, PRAVITHANAM DESOM,, MEENACHIL TALUK, KOTTAYAM DISTRICT. ``` - `3 ASHOKAN` ``` S/O NARAYANAN, KOVILPARAMBIL HOUSE, MALA DESOM, SREENARAYANAPURAM VILLAGE,, KODUNGALLUR TALUK, THRISSUR DISTRICT. ``` ``` BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA CIRCLE INSPECTOR OF POLICE, MALA POLICE STATION,, THRISSUR DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2022, ALONG WITH CRL.A.395/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A Nos.395 & 398/2008 ..3.. ## **[CRL.A Nos.395/2008 & 398/2008]** ## **JUDGMENT** Accused Nos. 1 and 3 to 5 in Sessions Case No.243/2003 are the appellants in these appeals. Accused No.1 is the appellant in Crl. Appeal No.395 of 2008 and accused Nos. 3 to 5 are the appellants in Crl. Appeal No.398/2008. 2. The prosecution case is that the appellants/ accused Nos. 1 to 5 possessed 10255 litres of spirit in two shop rooms bearing building Nos.XII/332 and XII/334 of Mala Gramapanchayat. The Sub Inspector of Police, Chalakkudy, detected the offence. On 18.09.2000 at 10 pm, PW1, the Sub Inspector of Police, Chalakkudy searched the shop rooms and recovered 91 plastic cans, each containing 35 litres of spirit, from shop room No.XII/332, 108 plastic cans, each containing 35 litres of spirit, from shop room No.XII/334 and 94 plastic cans each containing 35 litres of spirit, from another shop CRL.A Nos.395 & 398/2008 ..4.. room in that building. Altogether PW1 recovered 293 cans of spirit, totalling to 10225 litres. PW1 prepared Ext.P1 search list and seized the contraband substances from the respective buildings and produced them before the Sub Inspector of Police, Mala (PW16), at 03.00 AM on 19.09.2000 by way of Ext.P2 report. 3. PW16 registered Ext.P24 FIR. Based on Ext.P24 FIR, the Inspector of Police, Mala, (PW14) commenced investigation. 4. After completing the investigation, PW18 submitted final report against the accused for the offence punishable under Section 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, charge was framed against them for the offence punishable under Section 55(a) 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 CRL.A Nos.395 & 398/2008 **==> picture [20 x 8] intentionally omitted <==** offence. 5. The prosecution examined PWs 1 to 18 and proved Exts. P1 to P29(a) and MOs 1 to 591. 6. After the closure of the evidence on behalf of the prosecution, 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted accused Nos. 1 and 3 to 5 thereunder. Accused No.2 was acquitted. Accused Nos. 1 and 3 to 5 were sentenced to undergo rigorous imprisonment for a term of seven years each and pay a fine of Rs.1 Lakh each under Section 55(a) of the Abkari Act. CRL.A Nos.395 & 398/2008 ..6.. 7. Heard Sri. M.G. Karthikeyan, the learned counsel appearing for accused No.1, Sri. Nireesh Mathew, the learned counsel appearing for accused Nos. 3 to 5 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants/accused challenged the judgment of conviction and sentence on the following grounds: 1. Detection was made by an incompetent officer. 2. The prosecution failed to prove that the spirit allegedly recovered from the place of occurrence eventually reached the Chemical Examiners Laboratory. 9. The learned counsel, firstly, contended that as the detection was made by an incompetent officer, it would result in collapse of the entire prosecution case. The learned counsel relying on SRO. 321/1996 submitted that PW1, who conducted the detection, was not CRL.A Nos.395 & 398/2008 ..7.. competent to effect detection and seizure. The learned counsel submitted that PW1, the SI of Police, Chalakkudy had no territorial jurisdiction over the place from where the recovery was effected, which is evident from the fact that after the detection, the contraband substance and the other articles recovered were produced before PW16, the SI of Police, Mala. SRO 321/96 reads thus:- “ **SRO.No. 321/96.** - In exercise of the poweres conferred by section 4 of the Abkari Act, I of 1077 the Government of Kerala hereby appoint all police officers of and above the rank of Sub Inspector of Police in charge of Law and Order and working in the General executive branch of the Police Department and all the Revenue Officers of and above the rank of Deputy Collectors to be Abkari Officers under their respective jurisdiction for the purposes of Sections 31, 32, 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Act and to exercise all the powers and to discharge all the duties conferred and imposed on Abkari Officers, in the Sections aforesaid. ## 10. As per the above- extracted Government order, a Police Officer of and above the rank of Sub Inspector of Police in charge of law and order and working in the General executive branch of the Police Department under his respective jurisdiction alone is empowered to exercise jurisdiction under Sections 31, 32, CRL.A Nos.395 & 398/2008 ..8.. 33, 34, 35, 38, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53 and 59 of the Abkari Act. In the instant case, admittedly, the detection was made by the SI of Police, Chalakkudy, who had no jurisdiction over the place from where the recovery was effected. 11. The learned counsel relied on **Saji @ Kochumon v. State of Kerala** [2010 (3) KHC 259] and **Narayanankutty v. State of Kerala** [2015 (1) KHC 702] to substantiate his contention. In **Saji** and **Narayanankutty** (Supra), relying on SRO No. 321/96, this Court held that Police officers of and above the rank of Sub Inspector of Police in charge of law and order and working in the General executive branch of the Police department under the respective jurisdiction alone are competent to exercise powers under Sections 31 to 35, 38, 40 to 43 and 59 of the Abkari Act and to exercise all powers and to discharge all the duties conferred on the Abkari Officer under the above sections. This Court further held that the respective jurisdiction could only be CRL.A Nos.395 & 398/2008 **==> picture [20 x 9] intentionally omitted <==** the jurisdiction of that Sub Inspector concerned, and it can only be within the territorial limits of his police station. 12. Therefore, PW1, the detecting officer was incompetent to effect detection and recovery. The prosecution must fail on that ground alone. 13. The learned counsel further relied on the following circumstances to substantiate his contention that the prosecution failed to establish that the spirit allegedly recovered from the place of occurrence eventually reached the Chemical Examiners Laboratory:- - (a) Ext.P1 search list, the contemporaneous document prepared at the scene of occurrence, does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (b) Forwarding note/requisition for sending sample was not produced and marked. - (c) The various officials who handled the sample CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** during its transit from the Court to the laboratory were not examined to rule out the possibility of the sample being changed or tampered with. - (d) There is an inordinate delay in the production of properties, including the sample, before the Court. 14. The alleged seizure was on 18.09.2000. Ext.P16, the property list prepared on 19.09.2000, would show that the properties, including the sample, reached the Court only on 20.09.2000. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties, including the sample, before the Court. 15. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate CRL.A Nos.395 & 398/2008 ..11.. '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 **Ravi's 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 an explanation for the delay when there is delayed production of the property. 16. 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 the samples could not be ruled out. 17. Ext.P1 search list is the contemporaneous document prepared by the detecting officer at the time of seizure to evidence seizure and drawing of sample. CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature of the seal used. 18. The forwarding note/requisition for sending sample was not produced and marked. There is no evidence to show that the specimen of the seal used was forwarded to the chemical examiner to ascertain the genuineness of the sample produced for analysis. 19. The prosecution has not given evidence as to the date on which the samples were forwarded to the laboratory. Ext.P27, the Certificate of Chemical Analysis, shows that the bottles containing the sample were forwarded to the laboratory as per letter dated 20.10.2000 of the Judicial Magistrate of First Class, Chalakudy. Ext.P27 further shows that the bottles containing the sample reached the laboratory only on 24.10.2000. The prosecution has not explained the custody of the sample during the interregnum from CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** 20.10.2000 to 24.10.2000. It is relevant to note that the sample remained in the custody of the property clerk of the Court and the Police Constable No.3014 who delivered the same in the laboratory. These officials were not examined by the prosecution to explain the custody of the sample during the interregnum from 20.10.2000 to 24.10.2000. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as the prosecution could not rule out the possibility of the sample being changed or tampered with. 20. 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. 21. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** 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 when the contraband reaches the laboratory is required to be established by the prosecution. 22. 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. 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 CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** 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 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** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] **.** 23. 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 Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** 24. 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. 25. 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. 26. A survey of the precedents on the subjects leads this Court to conclude that strict compliance of the CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** rigours 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 charge alleging the offence punishable under the Abkari Act. 27. In the instant case, the prosecution failed to show that the spirit allegedly recovered from the place of occurrence was eventually subjected to analysis in the Chemical Examiners Laboratory. Therefore, Ext.P27 Certificate of Chemical Analysis has no evidentiary value. 28. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 29. 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 CRL.A Nos.395 & 398/2008 ..18.. from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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 are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 30. 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 found not guilty of the offence punishable under Section 55(a)of the Abkari Act. In the result, (i) the Appeals are allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused are acquitted of the offence alleged ; CRL.A Nos.395 & 398/2008 **==> picture [26 x 9] intentionally omitted <==** - (iv) They are set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K. BABU, JUDGE** kkj