CRL.A Nos. 1721 & 1855 of 2007 (Shaji v. State of Kerala; Ajayan v. State of Kerala)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, ``` ## **`1944`** ``` CRL.A NO. 1721 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 05.09.2007 IN SC 878/2000 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA ``` ## **`APPELLANT/ACCUSED NO.1:`** ``` SHAJI, S/O. BHAHULEYAN, THADATHIVILA VEEDU, KANNAMCODE MURI, VETTIKKAVALA VILLAGE, KOTTARAKKARA. ``` ``` BY ADVS. SRI.ALAN PAPALI SRI.P.M.RAFIQ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV SMT.REKHA,GP SRI. RAJESH A ,SPL .GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2022, ALONG WITH CRL.A.1855/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 14[TH] DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, ``` ``` 1944 ``` ``` CRL.A NO. 1855 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 05.09.20230 IN SC 878/2000 OF ADDITIONAL SESSIONS COURT, KOTTARAKKARA ``` ## **`APPELLANT/2ND ACCUSED:`** ``` AJAYAN, S/O DHARMAN MESSIRI, AJAYABHAVAN, SADANANDAPURAM MURI, VETTIKKAVALA VILLAGE, KOTTARAKKARA. ``` ``` BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, THROUGH SUB INSPECTOR OF POLICE, KOTTARAKKARA, REP. BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` BY ADV SMT.REKHA,GP SRI. RAJESH A ,SPL .GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 14.12.2022, ALONG WITH CRL.A.1721/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A Nos. 1721 &1855 of 2007 --------------------------------------------- Dated this the 14[th] day of December, 2022 ## **JUDGMENT** These appeals arise from the judgment dated 05.09.2007 passed by the Additional Sessions Court, Kottarakkara in S.C.No.878/2000. The appellant in Crl.A.No.1721/2007 is accused No.1 and the appellant in Crl.A.No.1855/2007 is accused No.2 The appellants/accused Nos.1 and 2 were convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 02.05.1998 at 6.45 p.m. accused Nos. 1 and 2 were found in possession of 400ml of arrack in a plastic bottle at Vettilavala, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 4 ``` Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P6. 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 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 offences punishable under Sections 55(a) and 55(i) of the Abkari Act and convicted them thereunder. 6. Heard Sri.Alan Papali, the learned counsel appearing for accused No.1, Sri.V.M.Kurian, the learned counsel appearing for ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 5 ``` accused No2. and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds:- - (1) The prosecution has not succeeded in establishing the tamper proof despatch of the contraband substance to the laboratory. - (2) The prosecution failed to establish that the arrack allegedly seized from the possession of the accused eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellants relied on the following circumstances to substantiate their 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 and forwarded to the Chemical Examiner’s Laboratory. (c) The delay in the production of the properties ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 6 ``` including the sample has not been satisfactorily explained by the prosecution. (d) The forwarding note/requisition for sending sample was not produced and marked. 9. The alleged seizure was effected on 02.05.1998. Ext.P6, the property list shows that the properties including the sample were produced before the Court only on 12.05.1998. No satisfactory explanation has been offered by the prosecution for the delay in the production of the property including the sample before the Court. 10. 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: 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.P.C 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) 11. In _**Ravi's case**_ (supra) the Division Bench held that ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 7 ``` 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. 12. 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. 13. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing arrack. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample produced. The detecting officer had not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory to ensure the genuineness of the sample produced for analysis. 14. 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 ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 8 ``` enable the Court to satisfy the genuineness of the sample produced in the Court. 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. 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. 17. As the prosecution failed to show that the arrack allegedly seized from the place of occurrence eventually reached ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 9 ``` the Chemical Examiner’s Laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 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 seized and the sample analysed in the laboratory. Therefore, the ``` Crl.A.Nos.1721 & 1855 of 2007 ``` ``` 10 ``` appellants/accused Nos. 1 & 2 are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The conviction and sentence passed by the Trial Court cannot be sustained. In the result, the appellants/accused Nos.1 & 2 are acquitted of the offences alleged. They are set at liberty. The appeals are allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK