Devi, W/o Late Cheriyeekkan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 22[ND] DAY OF JULY 2022 / 31ST ASHADHA, 1944** **CRL.A NO. 2941 OF 2008** **AGAINST THE JUDGMENT IN SC 803/2006 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE** ## **APPELLANT/ACCUSED:** DEVI,W/O LATE CHERIYEKKAN, AGED 67 YEARS, MADATHIL HOUSE, NEDIYANAD AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J. ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S. (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2941 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2941 of 2008 --------------------------------------Dated this the 22[nd] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 24.11.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode in S.C.No.803/2006, 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 16.08.2002 at 12.30 p.m., the appellant/accused was found in possession of 1 ½ litres of illicit arrack in a can. 3. After completing the investigation, final report was submitted against the appellant/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 made over to the Trial Court. On the appearance of Crl.A No.2941 of 2008 3 the accused, charge was framed against her for the offence punishable under Section 8 (2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she 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 P7 and MO1. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. M.Asokan, 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/accused challenged the judgment of conviction and sentence on the ground that the Crl.A No.2941 of 2008 4 prosecution failed to show that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant/accused submitted that Exhibit P6, the Certificate of Chemical Analysis, shows that a sealed bottle containing 180ml of clear and colourless liquid alleged to be arrack was forwarded as per letter dated 07.08.2002 of the Judicial First Class Magistrate-I, Thamarassery to the Chemical Examiner's Laboratory whereas the alleged seizure was on 16.08.2002. 9. The prosecution has not adduced any evidence as to the date on which the sample was forwarded to the laboratory. Going by Ext.P6, it is seen that the sample was forwarded by the Judicial First Class Magistrate-I, Thamarassery as per letter dated 07.08.2002. The alleged seizure was on 16.08.2002. Therefore, the possibility that the sample subjected to analysis was changed, cannot be ruled out. 10. In the present case, the sample remained in the custody of the property clerk of the Court and the Excise Guard who delivered 5 Crl.A No.2941 of 2008 the sample to the laboratory. None of those officials were examined to establish the tamper-proof despatch of the sample to the laboratory. Non-examination of those officials is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. 11. 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 the Chemical Examiner's laboratory. 12. A legal obligation is cast on the prosecution to prove that 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 it reaches the laboratory is required to be established by the prosecution. 13. In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this Court had occasion to elucidate on the legal obligation cast on the Crl.A No.2941 of 2008 6 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. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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. In Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)], this Court reemphasized on the requirement of strict compliance with the statutory formalities in the matter of sampling/sealing, etc., of the contraband to be sent for Chemical Examination. In Sathi's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Crl.A No.2941 of 2008 7 Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 14. As the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory, Exhibit P6 Certificate of Chemical Analysis has no evidentiary value. 15. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 16.09.2002, it was subjected to analysis only on 26.11.2003. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” In the present case, the delay in the analysis of the sample remained unexplained. 8 ## Crl.A No.2941 of 2008 16. 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. 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 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 Crl.A No.2941 of 2008 9 entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. She is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS