CRL.A No.1903 of 2007

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 25[TH] DAY OF OCTOBER 2022 / 3RD KARTHIA, 1944** **CRL.A NO. 1903 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CP 185/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,CHITTUR SC 973/2005 OF ADDITIONAL DISTRICT COURT (ADHOC) III, PALAKKAD** ## **APPELLANTS/ ACCUSED 1 & 2:** 1 MARIMUTHU AGED 29 YEARS, S/O SUBRAMANIAN, CHULLIPERUKKAPARA VEEDU, GOPALAPURAM DESOM, KIZHIPATHY VILLAGE, CHITTUR TALUK, PALAKKAD DISTRICT. 2 MURUKANANDAN AGED 29 YEARS, S/O KRISHNA PILLAI, MOOLAKADA DESOM, KOZHINJAMPARA VILLAGE, CHITTUR TALUK,, PALAKKAD DISTRICT. BY ADV SRI.K.P.BALAGOPAL ## **RESPONDENT/ COMPLAINANT:** STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. SMT. REKHA.S (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR HEARING ON 25.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1903 of 2007 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1903 of 2007 --------------------------------------Dated this the 25[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 06.10.2007, passed by the Additional Sessions Judge, Fast Track Court No.III, Palakkad in S.C.No.973/2005, accused Nos. 1 and 2 have preferred this appeal. The appellants/accused were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 27.06.2000 at about 5.30 AM, the appellants/ accused were found transporting about 75 litres of toddy in a jeep bearing Registration No. TMV 8417 at 4th Mile, Chittur Taluk in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted 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 Crl.A No.1903 of 2007 3 made over to the trial Court. On the appearance of the accused charge was framed against them for the offence punishable under Sections 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 offence. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P8 and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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 to adduce evidence, if any, they may have in support thereof. On the side of defence, DWs 1 to 3 were examined and Exts. D1 & D2 were marked. 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 them thereunder. 6. Heard Sri.K.P.Balagopal, the learned counsel appearing Crl.A No.1903 of 2007 4 for the appellants/ accused and Smt. Rekha.S., the learned Senior Public Prosecutor appearing for the respondents. 7. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions. (a) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The specimen of the seal was not produced before the Court at the time of production of the sample. (c) The name of the official with whom the sample was forwarded to the laboratory has not been recorded in Ext.P6 forwarding note. (d) The inordinate delay in sending the sample to the laboratory has not been explained by the prosecution. Crl.A No.1903 of 2007 5 (e) The custody of the sample during the interregnum from 26.06.2001 to 04.08.2001 has not been explained by the prosecution. 8. The alleged seizure was effected on 27.06.2000. The seizure was effected by the Excise Inspector, Chittur range. At the scene of occurrence the detecting officer had drawn sample from the bulk quantity of the toddy allegedly seized from the possession of the accused. He had prepared Ext.P1 seizure mahazar, a contemporaneous document. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of seal used. There is nothing to show that the specimen of the seal was produced before the Court. 9. 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 Court. In the Crl.A No.1903 of 2007 6 present case, there is nothing to show that the specimen of the seal was produced before the Court at the time of production of the sample. 10. The sample was produced before the Court on 27.06.2000, and the junior superintendent of the Court received the same. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner's laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the Chemical Examiner's laboratory as per letter dated 26.06.2001 of the JFMC, Chittur. The sample reached the laboratory only on 04.08.2001. Ext.P8 would further show that two Excise Guards by name V.P.Sabu and V.Suresh Babu delivered the sample in the laboratory. The sample remained in the custody of the property clerk of the Court, the junior superintendent of the Court who received the sample on 27.06.2000, the property clerk of the Court and the Excise officials who delivered the sample in the laboratory. None of those officials were examined by the prosecution. There is absolutely no explanation for the custody of the sample during the interregnum Crl.A No.1903 of 2007 7 from 26.06.2001 to 14.08.2001. While dealing with a similar fact situation in Viswanathan v. State of Kerala [2016 (3) KHC 38], this Court held thus: “Unless it is proved by the prosecution that the articles reached the chemical examiner’s lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner’s lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.“ 11. In the absence of any satisfactory explanation for the delay in the production of the sample before the Chemical Examiner's laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 12. Non-examination of the officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. The necessary conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. Resultantly, Ext.P8 Certificate of Chemical Analysis has no Crl.A No.1903 of 2007 8 evidentiary value. 13. The conviction and sentence recorded by the court below, therefore, cannot be sustained as the prosecution failed 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. The accused are found not guilty to the offence alleged. 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 APA