DHARMARAJAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 2[ND] DAY OF AUGUST 2022 / 11TH SRAVANA, 1944 CRL.A NO. 1962 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 41/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP 25/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS , ``` ## **`SASTHAMCOTTA`** ## **`APPELLANT/S:`** ``` DHARMARAJAN NAYANAM VEEDU,, ANAYADI MURI, SOORANADU NORTH VILLAGE,, KUNNATHOOR, KOLLAM DISTRICT. BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA EXCISE RANGE INSPECTOR, EXCISE CIRCLE INSPECTOR,, KUNNATHOOR, SASTHAMCOTTA THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1962 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 22.08.2008, passed by the Additional District & Sessions Court, [Adhoc-II], Kollam in Sessions Case No.41/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.2 Lakhs. 2. The prosecution case is that on 20.12.2002, at 6.15 p.m., the appellant/accused was found in possession of 140 litres of spirit contained in 4 cans of 35 litres capacity each and 296 bags containing 150 ml arrack each kept in the almirah placed in the bed room on the north-western position of his residence at Sooranadu village 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. 1962 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 4 and proved Exts. P1 to P10 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 adduce evidence, if any, he may have in support thereof. On the side of defence DW1 was examined and proved Ext.D1. The trial Court, after hearing the arguments addressed on both sides, convicted the appellant/accused for the ``` CRL.A NO. 1962 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** aforesaid offence. 6. Heard Sri. C. 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 challenged the judgment of conviction and sentence on the ground that the 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 his contentions:- (i)The Excise official who detected the offence is not competent to effect search and seizure. (ii) The prosecution failed to show that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. ``` CRL.A NO. 1962 OF 2008 ``` ..5.. (iii)Specimen of the seal stated to have been affixed on the bottle containing the sample was not forwarded to the Chemical Examiner’s Laboratory for verification. (iv)The officials who handled the sample during its transit from the Court to the Laboratory were not examined to establish the tamperproof despatch of the sample to the Court. (v)The space for incorporating specimen of the seal is left vacant in Ext.P8 forwarding note. (vi)The prosecution has not given any evidence to the effect that the specimen of the seal affixed on the bottle containing the sample was forwarded to the Chemical Examiner for analysis. Therefore, the statement in Ext.P10 Certificate of Chemical Analysis that the seals on the bottles were intact and found tallied with the sample seal provided cannot be accepted. ``` CRL.A NO. 1962 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 9. The alleged seizure and arrest were effected by PW3, the Circle Inspector of Excise Enforcement and Anti Narcotic Special Squad, Kollam. The contraband substance allegedly seized from the place of occurrence was produced before the Excise Inspector, Sasthamangalam, who proceeded with further in the matter. 10. The learned counsel for the appellant contended that as the search and seizure were effected by an incompetent officer, the entire prosecution proceedings stand vitiated. The learned counsel submitted that PW3, the Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad, Kollam was not a competent officer to effect seizure and arrest. 11. The learned counsel for the appellant/accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation, this Court in **Suresh's** case (supra) held that a case built on the detection made by an ``` CRL.A NO. 1962 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** incompetent officer will have to collapse necessarily. On this ground alone, the prosecution must fail. 12. The sample remained in the custody of the property clerk till 14.01.2003 and the Excise guard by name Shihabudeen received the bottles from the Court on 14.01.2003. He produced the same before the laboratory on 15.01.2003. The Property Clerk of the Court and the Excise Guard who delivered the sample in the laboratory were not examined to rule out the possibility of the sample being changed or tampered with. 13. 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. 14. 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 ``` CRL.A NO. 1962 OF 2008 ``` ..8.. reached the Chemical Examiner's laboratory in a tamperproof 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. 15. 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 tamperproof condition. Relying on **State of Rajasthan v. Daulat 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. In **Sathi v. State of Kerala** [2007 (1) ILR 718 (Ker.)], this Court re-emphasized on the requirement ``` CRL.A NO. 1962 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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** (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** (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 **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 ``` CRL.A NO. 1962 OF 2008 ``` ..10.. Analysis Report. 17. In the instant case, as the prosecution failed to show that the contraband substance allegedly recovered from the place of occurrence was forwarded to the Chemical Examiner’s Laboratory, Ext. P10 Certificate of Chemical Analysis has no evidentiary value. 18. 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 appellant/accused is acquitted of the offence alleged ; (iv) He is set at liberty ; ``` CRL.A NO. 1962 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (v) Any amount deposited by the appellant/accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj