Gangadharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 2250 OF 2006** **AGAINST THE JUDGMENT IN SC 84/2002 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT (ADHOC), MAVELIKKARA** ## **APPELLANT/ACCUSED:** GANGADHARAN, AGED 34 YEARS, S/O.PARAMESWARAN, KALA BHAVANAM, PAYYANALLOOR KARA, PALAMEL VILLAGE, MAVELIKARA TALUK. BY ADV SRI.RASHEED C.NOORANAD ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY THE EXCISE INSPECTOR, MAVELIKKARA RANGE, REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.G.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 18.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2250 of 2006 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2250 of 2006 --------------------------------------Dated this the 18[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 03.11.2006, passed by the Additional District and Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C.No.84/2002, the accused has preferred this appeal. 2. The Trial Court convicted the accused for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. 3. The prosecution case is that on 27.09.1999 at 6.00 p.m, the accused was found transporting a 5 litre can containing about 4 litres of illicit arrack on the Panchayat road leading to Payyanalloor Welfare L.P school from Aadikattukulangara junction. 4. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Mavelikkara. The case was committed to 3 Crl.A No.2250 of 2006 the Sessions Court, Alappuzha from 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 55(a) and 8(2) 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. 5. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P4 and MO1. 6. After the closure of the prosecution evidence, 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. From the side of the defence DW1 was examined. The Trial Court, after hearing the arguments addressed from both sides, found the accused guilty of the offences under Sections 8(2) and 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Crl.A No.2250 of 2006 4 Rs.1 Lakh. 7. Heard Sri.C.Rasheed, the learned counsel for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. He relied on the following circumstances to substantiate his contentions: - (a) The detecting officer has not given evidence as to the nature of the seal used and the seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample. - (b) No forwarding note was produced and marked so as to establish that the specimen seal was forwarded to the Chemical Examiner's laboratory to ensure the genuineness of the sample examined in the laboratory. 9. Exhibit P1 is the seizure mahazar. It does not contain the Crl.A No.2250 of 2006 5 nature of the seal stated to have been used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. No material has been placed before the Court to see that the specimen seal was produced before the Court so as to enable the Court to ascertain the genuineness of the sample produced. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), this Court held that the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced in the Court. 10. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. Forwarding note/requisition for sending sample to the laboratory should contain the specimen seal stated to have been used by the detecting officer which would enable the Chemical Examiner to ascertain the genuineness of the sample 6 Crl.A No.2250 of 2006 delivered in the laboratory. In the present case, the prosecution failed to establish that a forwarding note was prepared and forwarded to the laboratory. 11. 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 tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 12. Exhibit P4 is the certificate of chemical analysis prepared by the Chemical Examiner. The prosecution has to establish that the contraband substance allegedly seized from the place of occurrence was actually subjected to analysis in the laboratory in order to rely on the certificate of chemical analysis. In the absence of any evidence as to the nature of the seal used by the detecting officer and convincing material to show that the contraband allegedly seized actually reached the Chemical Examiner’s laboratory, Ext.P4 Crl.A No.2250 of 2006 7 ## chemical analysis report cannot be given any evidentiary value. 13. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 14. 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]}. 15. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 16. The upshot of the above discussion is that the conviction Crl.A No.2250 of 2006 8 entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is, therefore, not guilty of the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS