Dasan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 23[RD] DAY OF NOVEMBER 2022 / 2ND AGRAHAYANA, 1944** **CRL.A NO. 744 OF 2008** **AGAINST THE JUDGMENTIN SC 964/2006 OF ADDITIONAL DISTRICT &** **SESSIONS COURT, VADAKARA** ## **APPELLANT/ACCUSED:** DASAN, S/O KELAN, AGED 39 YEARS,, EDACHANI VEETTIL, MANTHARATHUR AMSOM, VATAKARA TALUK BY ADV SRI.SUNNY MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, EXCISE INSPECTOR, VADAKARA EXCISE RANGE, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV SMT. REKHA.S, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.744 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.744 of 2008 --------------------------------------Dated this the 23[rd] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 28.03.2008, passed by the Additional District and Sessions Court, Vadakara in S.C.No.964/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 22.12.2003 at 11.30 a.m, the accused was found in possession of 5 litres of illicit arrack at Mantharathur amsom desom 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 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.744 of 2008 3 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 7 and proved Exts.P1 to P9. 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 offence. 6. Heard Sri. Sunny Mathew, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the Crl.A No.744 of 2008 4 judgment of conviction and sentence on the ground 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. 8. The alleged seizure was effected on 22.12.2003. The Excise Inspector, Vadakara Excise Range is the detecting officer. The learned counsel for the appellant contended that the prosecution failed to establish the genuineness of the sample produced before the Court and forwarded to the laboratory. The learned counsel further contended that the specimen of the seal was not produced before the Court at the production of the sample. It is also contended that Ext.P2 seizure mahazar does not contain the legible description of the seal stated to have been affixed on the bottle containing the sample. In Ext.P2, the specimen seal is incorporated, but the same is not legible. PW1, the detecting officer has not given evidence as to the nature of the seal used at the time of sampling. 9. 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 Crl.A No.744 of 2008 5 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. 10. The sample was produced before the Court on 23.12.2003, which is evident from Ext.P4 property list. The sample was received by the Junior Superintendent of the Court. The sample remained in the custody of the Junior Superintendent of the Court, the property clerk of the Court and the Excise guard Sri.Vinod who delivered the same in the laboratory. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 11. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P9 would show that the sample was forwarded to the laboratory as per letter dated 23.12.2003. The sample reached the laboratory only on 02.01.2004. 12. In the absence of any convincing evidence as to the date on which the sample was forwarded to the laboratory, the necessary inference is that the sample was forwarded on Crl.A No.744 of 2008 6 ## 23.12.2003, through the Excise guard concerned. The custody of the sample during the period from 23.12.2003 to 02.01.2004 has not been explained by the prosecution. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article 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.” 13. In the present case, the prosecution has not succeeded in establishing the tamper-proof despatch of the sample to the laboratory due to the non-examination of the officials who handled the sample. 14. Since the prosecution has not succeeded in proving that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Exhibit P9 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.744 of 2008 7 15. 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. 16. 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]}. 17. In the instant case, the prosecution has miserably failed 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. 18. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the Crl.A No.744 of 2008 8 matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS