Jayakumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 10[TH] DAY OF JUNE 2022 / 20TH JYAISHTA, 1944** **CRL.A NO. 771 OF 2007** **AGAINST THE ORDER/JUDGMENT IN CP 7/2005 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS - I, DEVICULAM** **SC 280/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** JAYAKUMAR, S/O MARIMUTHU, 5 MURI LAYARM, TOP DIVISION, CHENDUVURAI ESTATE, KDH VILLAGE. BY ADV M.T.SURESHKUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.771 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.771 of 2007 --------------------------------------Dated this the 10[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 21.03.2007, passed by the Additional Sessions Court, (Adhoc)-II, Thodupuzha in S.C.No.280/2005, the accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 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 30.08.2003 at 6.15 p.m the accused was found in possession of 600 ml of arrack in a 2 litre bottle on the Munnar-Chenduvural Lower Division road. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Devikulam. The case was committed to the Sessions Court, Thodupuzha from where it was made over to the Crl.A No.771 of 2007 3 Trial Court. On the appearance of the accused, charges were framed against him for the offences punishable under Sections 8(2), 55(a) and (i) 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. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MOs 1 to 5. 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offences. 6. Heard Sri. R.Renjith, 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 Crl.A No.771 of 2007 4 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 was eventually subjected to analysis in the Chemical Examiner's laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) 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 delay in the production of the sample before the Court has not been explained. 8. The alleged seizure was on 30.08.2003. Exhibit P4 property list shows that the sample was produced before the Court only on 01.09.2003. There is no satisfactory explanation for the delay in the production of the sample before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: - “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized Crl.A No.771 of 2007 5 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. ” (Emphasis supplied) In Ravis' 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. 9. 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 sample could not be ruled out. 10. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. 11. The bottle containing the sample remained in the custody of the property clerk of the Court, till it was forwarded to the Crl.A No.771 of 2007 6 laboratory on 16.10.2003. Exhibit P6 certificate of chemical analysis shows that the sample was delivered to the laboratory by a Police constable No.2294. The property clerk of the Court and the Police official who handed over the sample to the laboratory were not examined by the prosecution. It is pertinent to note that the Police constable, who handed over the sample to the laboratory, received the same from the Court on 15.10.2003, but he produced the same in the laboratory only on 16.10.2003. Non-examination of the Police official who delivered the sample to the laboratory and the property clerk of the Court, is fatal to the prosecution. The necessary inference is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 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 7 Crl.A No.771 of 2007 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 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 Crl.A No.771 of 2007 8 (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 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 present case, the prosecution failed to establish that the contraband substance seized from the possession of the accused was eventually subjected to analysis in the Chemical Examiner's laboratory. Therefore, Ext.P6 certificate of chemical analysis has no evidentiary value. Crl.A No.771 of 2007 9 17. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 16.10.2003, it was subjected to analysis only on 17.11.2004. There is no explanation for the delay in the analysis of the sample. On the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held thus: “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.” 18. 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. 19. 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 Crl.A No.771 of 2007 10 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]}. 20. 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. 21. 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. The appellant/accused is, acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS