CRL.A No. 428 of 2008 (Kerala High Court)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 4[TH] DAY OF APRIL 2024 / 15TH CHAITHRA, 1946 CRL.A NO. 428 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 29.01.2008 IN SC NO.344 OF 2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, PALAKKAD APPELLANT/S: ``` ## **`BABURAJ`** ``` RESIDING AT KAPPIL VEEDU, THIRUVAZHIYOD DESOM,, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. SRI.V.CHITAMBARESH (SR.) SRI.P.S.APPU SRI.JIBU P THOMAS SRI.T.C.SURESH MENON ``` ## **`RESPONDENT/S:`** - **`1 THE STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM.`** - **`2 THE EXCISE INSPECTOR CHERPULASSERY EXCISE RANGE, PALAKKAD.`** ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl Appeal No.428 of 2008 ..2.. ## **K. BABU, J** ------------------------------------------------- **Crl Appeal No.428 of 2008** ------------------------------------------------Dated this the 4[th] day of April, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 29.01.2008, passed by the Additional Sessions Court, Fast Track Court No. II, Palakkad in S.C.No.344/2006, 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 period of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.04.2003 at 05.45 p.m., the accused was found in possession of 1.8 litres of arrack at Thiruvazhiyode Desom in Vellinezhy Village in violation of the provisions of the Abkari Act. Crl Appeal No.428 of 2008 **==> picture [20 x 9] intentionally omitted <==** 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) 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 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 P9 and MOs 1 and 2. 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 called upon to enter on his defence and adduce evidence, Crl Appeal No.428 of 2008 **==> picture [20 x 9] intentionally omitted <==** 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 Appeal No.428 of 2008 **==> picture [20 x 9] intentionally omitted <==** (i)Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii)The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 24.04.2003. Ext.P2 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. Ext.P2 does not contain the specimen of the seal used by the detecting officer. 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. 10. 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 Crl Appeal No.428 of 2008 **==> picture [20 x 9] intentionally omitted <==** in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 11. 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. Bastin K.K. The Junior Superintendent of the Court, the Property Clerk and Sri.Bastin K.K, 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 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 Crl Appeal No.428 of 2008 **==> picture [20 x 9] intentionally omitted <==** ## **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314).** 12. 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.P9 Certificate of Chemical Analysis has no evidentiary value. 13. 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. 14. 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 ..8.. Crl Appeal No.428 of 2008 laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 15. 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