Gopalakrishna Kurup v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 2[ND] DAY OF SEPTEMBER 2022 / 11TH BHADRA, 1944 CRL.A NO. 828 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENTSC 476/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA CP 31/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`MAVELIKKARA`** ## **`APPELLANT/S:`** ``` GOPALAKRISHNA KURUP RAMYA BHAVANAM, PALLICKAL MURI, PALAMEL VILLAGE, MAVELIKARA. BY ADV SRI.RINNY STEPHEN CHAMAPARAMPIL ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV SR. PUBLIC PROSECUTOR SMT. REKHA.S. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 828 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 28.04.2007, passed by the Additional Sessions Court, Mavelikkara in Sessions Case No.476/2002, 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. One Lakh. 2. The prosecution case is that on 08.04.2000 at 05.45 pm, the accused was found in possession of 750ml of illicit arrack at Edinjayath Unnukal 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 ## **`CRL.A NO. 828 OF 2007`** **==> picture [20 x 9] intentionally omitted <==** 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 P9 and MO1. 5. After the closure of the evidence on behalf of the prosecution, 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. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under ## **`CRL.A NO. 828 OF 2007`** **==> picture [20 x 9] intentionally omitted <==** Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Rinny Stephen Chamaparambil, 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 contraband substance allegedly 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 delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. ## **`CRL.A NO. 828 OF 2007`** ..5.. - (ii) No specimen seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. - (iii) Ext. P1 seizure mahazar does not contain the nature and description of the seal used. 9. The alleged seizure and arrest were effected on 08.04.2000 by the Excise Inspector, Excise Range, Maveikkara (PW1). The Detecting Officer had drawn sample from the scene of occurrence. Ext.P7, the list of properties shows that the properties including the sample were produced before the Court only 18.04.2000. The prosecution has not given any explanation for the delay in the production of the properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: ``` CRL.A NO. 828 OF 2007 ``` ..6.. “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext.P1 is the seizure mahazar prepared at the ## **`CRL.A NO. 828 OF 2007`** **==> picture [20 x 9] intentionally omitted <==** scene of occurrence. The detecting officer has not narrated the nature and description of the seal used at the time of drawing the sample. There is no evidence to show that the specimen of the seal was produced before the Court at the time of production of the properties, so as to prove the genuineness of the sample. 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 reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband ``` CRL.A NO. 828 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 **Bhaskaran v. State of Kerala** (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 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. 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 Analysis Report. ``` CRL.A NO. 828 OF 2007 ``` ..9.. 17. 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. The sample seized and that tested have to be corelated. 18. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused.[vide: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **Sasidharan v. State of Kerala** [2007(1) KHC 275]. 19. In the instant case, the prosecution has not succeeded in establishing that the arrack allegedly seized ``` CRL.A NO. 828 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. The prosecution failed to establish the link connecting the accused with the contraband allegedly seized from the place of occurrence and the sample analysed in the laboratory. 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; - (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