Damodaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 1[ST] DAY OF FEBRUARY 2024 / 12TH MAGHA, 1945** **CRL.A NO. 1697 OF 2007** **AGAINST THE JUDGMENT IN SC 681/2003 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT (ADHOC), MAVELIKKARA** ## **APPELLANT/ACCUSED:** DAMODARAN, AGED 46 YEARS, S/O RAMAN, THUNDATHIL PADEETTATHIL,, PULIMEL MURI, NOORANAD VILLAGE, MAVELIKARA. BY ADV SRI.S.SHANAVAS KHAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1697 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.1697 of 2007 --------------------------------------Dated this the 1[st] day of February, 2024 ## JUDGMENT Aggrieved by the judgment dated 10.09.2007, passed by the Additional District and Sessions Court, Fast Track (Ad hoc), Mavelikkara, in S.C.No.681/2003, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three and half (3 1/2) years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 15.06.2002 at 6.00 p.m, the accused was found in possession of about 3 litres of illicit arrack in a 5 litre black cannas along with a glass at Pulimel Muri in Nooranad Village. 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 Crl.A No.1697 of 2007 3 where it was made over to the Trial Court. On the appearance of the accused, charges were framed against him for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri. S.Shanavas Khan, the learned counsel appearing for the appellant/accused and Sri. G.Sudheer, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.1697 of 2007 4 judgment of conviction and sentence on the following grounds: - (i) The delay in the production of the properties, - including the sample, has not been satisfactorily explained by the prosecution. - (ii) Exhibit P1 seizure mahazar does not contain - the nature and description of the seal stated to have been used by the detecting officer. - (iii) The forwarding note, which contains the specimen seal, has not been produced and marked. - (iv) The specimen seal was not produced before the Court. 8. The alleged seizure was effected on 15.06.2002. The properties, including the sample, were produced before the Court only on 17.06.2002, as is evident from Exhibit P7 property list. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353] , on the question of delay in the production of properties, a Division Bench of this Court held Crl.A No.1697 of 2007 5 ## as follows: “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.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 Ravis' 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 explanation for the delay when there is delayed production of the property. 9. 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 sample could not be ruled out. 10. The detecting officer had drawn sample at the scene of occurrence. He prepared Ext.P1 seizure mahazar, which does not contain the nature and description of the seal stated to have been used. The specimen of the seal was not produced before the Court. The forwarding note, which contains the specimen of the seal used Crl.A No.1697 of 2007 6 has not been produced and marked. 11. In Bhaskaran K. v. State of Kerala and another (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. 12. 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. 13. 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 tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that Crl.A No.1697 of 2007 7 was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 14. The Apex Court in Vijaya Pandey v. State of U.P. (AIR 2019 SC 3569) while examining the provisions of the NDPS Act held thus: “the failure of the prosecution in the case to relate the seized sample with that seized from the appellant, makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of the Laboratory report that the sample tested was narcotics cannot be conclusive proof by itself.” 15. Since the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory, Exhibit P5 Certificate of Chemical Analysis has no evidentiary value. 16. In Vijay Pandey (supra) 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. 17. 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 Crl.A No.1697 of 2007 8 ## v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275] }. 18. 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 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 appellant/accused is acquitted of the offences alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS