Devan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, ``` ## **`1944`** ## **`CRL.A NO. 1371 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT SC 592/2005 OF ADDITIONAL ``` ``` SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` DEVAN, S/O GOPALAN KUZHIPPATTIL HOUSE, KATCHERI AMSOM DESOM, KOZHIKODE. ``` ``` BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT & STATE:`** - `1 EXCISE RANGE OFFICER AND ANOTHER KOZHIKODE.` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. SR.P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1371 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 03.07.2008, passed by the Additional Sessions Court, Fast Track (Adhoc – II), Kozhikode in Sessions Case No.592 of 2005, the 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 24.09.2003 at 12.30 p.m., the accused was found in possession of 3 litres of arrack near the quarters of Tele Communication Department at East Hill in Kacheri Village of Kozhikode District 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 ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was 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 5 and proved Exts.P1 to P6 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the 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 to adduce evidence, if any, he may have in support thereof. On the side of defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides, ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.T.G. Rajendran, 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 challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant submitted that the prosecution failed to explain the custody of the sample during the interregnum from 24.09.2003 to 17.10.2003. The alleged seizeure was effected on 24.09.2003. The prosecution has not given evidence as to the date on which the sample was forwarded to the ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** laboratory. Ext.P5 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 24.09.2003 of the Judicial First Class Magistrate Court, Kozhikode. In the absence of any contra evidence, the necessary inference is that the sample was forwarded to the laboratory on 24.09.2003 itself. Ext.P5 would further show that the sample reached the laboratory only on 17.10.2003. It is further seen that an Excise Guard by name B.Unnikrishnan delivered the sample in the laboratory. The sample remained in the custody of the Property Clerk of the Court, the Excise Guard who received the sample from the Court and the Excise Official who delivered the same in the laboratory. There is nothing on record to show as to who received the sample from the Court on 24.09.2003 with intent to be delivered to the laboratory. Neither the property Clerk of the Court nor Shri.P.Unnikrishnan, the Excise Guard who delivered the sample in the laboratory was examined by ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the prosecution to establish the tamper-proof despatch of the sample to the laboratory. There is absolutely no explanation as to the custody of the sample during the interregnum from 24.09.2003 to 17.10.2003. 9. 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 ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** seized from the possession of the accused. This benefit must be given to the accused.” 10. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 11. In the instant case, there is no evidence as to the custody of the sample during the period from 24.09.2003 to 17.10.2003. The resultant conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the laboratory. Non-examination of the officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. ``` CRL.A NO. 1371 OF 2008 ``` ..8.. 12. In the absence of any convincing evidence to show that the contraband substance seized from the place of occurrence was actually analysed in the Chemical Examiner’s Laboratory, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 13. 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. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged ; ``` CRL.A NO. 1371 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj