CRL.A Nos. 428 and 429 of 2009

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` CRL.A NO. 428 OF 2009 ``` ``` AGAINST JUDGMENT DATED 16.02.2009 IN SC NO.553 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD ``` ``` APPELLANT/1ST ACCUSED IN CUSTODY: ``` ``` BABY, S/O MATHAI,PAKKUMNEN HOUSE, EZHAKKARANADU, MOOOVATTUPUZHA TALUK. ``` ``` BY ADVS. SMT.SRUTHY K K SRI.P.VIJAYA BHANU (SR.)(K/421/1984) SRI.P.M.RAFIQ(K/45/2001) SRI.M.REVIKRISHNAN(K/1268/2004) SRI.AJEESH K.SASI(K/166/2006) SMT.SRUTHY N. BHAT(K/000579/2017) SRI.RAHUL SUNIL(K/000608/2017) SMT.NIKITA J. MENDEZ(K/2364/2022) SMT.NANDITHA S.(K/000498/2024) SRI.SOHAIL AHAMMED HARRIS P.P.(K/1395/2020) ``` ## **`RESPONDENT/COMPLAINANT:`** - **`1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.`** ## **`2 THE EXCISE CIRCLE INSPECTOR PALAKKAD EXCISE RANGE`** ``` BY ADV. SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2024, ALONG WITH CRL.A.429/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 27[TH] DAY OF MAY 2024 / 6TH JYAISHTA, 1946 ``` ``` CRL.A NO. 429 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 16.02.2009 IN SC NO.553 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD ``` ## **`APPELLANT/2ND ACCUSED IN CUSTODY:`** ``` ANIL, S/O RAMU, KODAL HOUSE, AMALAPURAM, KUNNATHUNADU TALUK. ``` ``` BY ADV SRI.V.A.JOHNSON (VARIKKAPPALLIL) ``` ## **`RESPONDENT/COMPLAINANT:`** - **`1 STATE OF KERALA, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM`** - **`2 THE EXCISE CIRCLE INSPECTOR, PALAKKAD EXCISE RANGE.`** ``` BY ADV. SRI.G.SUDHEER, PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2024, ALONG WITH CRL.A.428/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A Nos. 428 and 429 of 2009 --------------------------------------------Dated this the 27[th] day of May, 2024 ## **COMMON JUDGMENT** These two appeals are directed against the judgment dated 16.02.2009 passed by the Additional Sessions Court (Adhoc-I), Palakkad in S.C.No.553/2006. Accused No.1 is the appellant in Crl.A.No.428/2009. The appellant in Crl.A.No.429/2009 is accused No2. Accused Nos. 1 and 2 were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of seven years each and pay a fine of Rs.3 Lakhs each. 2. The prosecution case is that on 11.10.2004, the appellants were found in possessing 178 cans each containing 35 litres of spirit in a lorry bearing registration No.KL-7-W-2175 at Walayar, 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 ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 4 ``` 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 offence. 4. The prosecution examined PWs. 1 to 6 and proved Exts.P1 to P9. 5. After the closure of evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was 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 was 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 punishable under Section 55(a) of the Abkari Act and convicted them thereunder. 6. Heard the learned counsel appearing for the appellants/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenge the judgment of conviction and sentence on the ground that the ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 5 ``` 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 their contentions: (i) Ext.P1 mahazar does not contain a legible specimen of the seal stated to have been used at the place of occurrence. (ii) The various officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 11.10.2004. The detecting officer had prepared Ext.P1 mahazar at the scene of occurrence. He had drawn the sample at the scene. The specimen of the seal affixed in Ext.P1 is not legible and not sufficient to identify the nature of the seal used. There is also no evidence to show that the specimen of the seal was produced before the Court when the properties were produced. The list of properties is not seen marked. ## 10. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 6 ``` 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. 11. The sample remained in the custody of the property clerk till 19.11.2004. Ext.P9, the copy of forwarding note does not contain the name of the Excise official with whom the sample was forwarded to the laboratory. The space meant for entering the name of the Excise Guard with whom the sample was forwarded left vacant. Ext.P6, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory on 19.11.2004. It is further seen that the sample reached the laboratory on 20.11.2004 through an Excise Guard by name Sri.Anvar. Neither the property clerk nor the Excise Guard Sri.Anvar who delivered the sample to the laboratory was not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 12. 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 ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 7 ``` the Chemical Examiner's laboratory. 13. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the 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. 14. 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. Daulath 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. 15. In **Sathi v. State of Kerala (2007 (1) ILR 718 (Ker.))** , this Court re-emphasized on the requirement of strict ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 8 ``` 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 S. 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)** . 16. In the present case, the prosecution failed to establish the scene of custody of the sample during its transit from the Court to the laboratory. Ext.P6 Certificate of Chemical Analysis has no evidentiary value 17. 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. 18. In the instant case, the prosecution was unable to ``` Crl.A.Nos.428 and 429 of 2009 ``` ``` 9 ``` establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 19. 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 appellants/accused Nos. 1 and 2 are acquitted of the offence alleged. They are set at liberty. These Criminal Appeals are allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK