Haridasan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 14[TH] DAY OF JULY 2022 / 23RD ASHADHA, 1944** **CRL.A NO. 874 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 314/2006 OF ADDITIONAL SESSIONS** **COURT, FAST TRACK-II, PALAKKAD** ## **APPELLANT/ACCUSED:** HARIDASAN, NEELIYATTIL HOUSE, KOLLANNUR DESOM, KAPPUR VILLAGE, OTTAPALAM TALUK. BY ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVEENDRANATH ## **RESPONDENT/STATE:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.874 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.874 of 2008 --------------------------------------Dated this the 14[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 28.04.2008, passed by the Additional Sessions Court, Fast Track-II, Palakkad in S.C.No.314/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 10.07.2003 at about 10.30 p.m., the appellant/accused was found possessing 10 litres of arrack in a 10 litre plastic can at Kollannur Desom in Kappur Village of Ottapalam Taluk. 3. After completing the investigation, final report was submitted against the appellant/accused for the offences punishable under Sections 55(a) and 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 Crl.A No.874 of 2008 3 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 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. On the side of the defence, Exts.D1 to D3 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. P.K.Mohanan, 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 Crl.A No.874 of 2008 4 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 for the appellant relied on the following circumstances to substantiate his contentions: - (i) Exhibit P3, the seizure mahazar, does not contain - the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) The detecting officer has not given evidence as to the nature of the seal used. - (iii) The delay in producing the sample in the laboratory after the same was obtained from the Court has not been explained by the prosecution. - (iv) The various officials, who handled the sample during its transit from the Court to the laboratory, - were not examined by the prosecution to rule out - the possibility of the sample being changed or tampered with. 9. The alleged seizure was on 10.07.2003. The seizure and Crl.A No.874 of 2008 5 arrest were effected by the Excise Inspector of Trithala Excise Range (PW1). At the time of seizure, PW1 had prepared Ext.P3 seizure mahazar evidencing seizure and drawing of the sample. Exhibit P3 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given convincing evidence as to the nature of the seal used. 10. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P9, the certificate of Chemical Analysis, shows that the sample was forwarded to the laboratory as per letter dated 11.07.2003 of the Judicial First Class Magistrate, Pattambi. Exhibit P9 further shows that the sample reached the laboratory on 14.07.2003. The prosecution has not explained the custody of the sample during the interregnum from 11.07.2003 to 14.07.2003. 11. The sample remained in the custody of the Junior Superintendent of the Court, the property clerk of the Court and Sri.Harish, who delivered the sample to the laboratory. Those officials were not examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. The Crl.A No.874 of 2008 6 omission on the part of the prosecution in not examining the officials, who handled the sample during its transit from the Court to the laboratory, is fatal as the prosecution failed to rule out the possibility of the sample being changed or tampered with while the sample remained in their custody. 12. 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. 13. 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. 14. 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 Crl.A No.874 of 2008 7 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 Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 15. In Bhaskaran K. v. State of Kerala and another (2020 KHC Crl.A No.874 of 2008 8 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 the instant case, the prosecution could not establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Exhibit P9 Certificate of Chemical Analysis has no evidentiary value. 17. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 14.07.2003, it was analysed only on 15.10.2004. 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 Crl.A No.874 of 2008 9 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.” 18. In the present case, the delay of more than a year in the analysis of the sample remained unexplained. 19. 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. 20. 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]}. 21. 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 Crl.A No.874 of 2008 10 evidence as discussed above. 22. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS