Jayarajan S/o Sreedharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944** **CRL.A NO. 2211 OF 2008** **AGAINST THE ORDER/JUDGMENT SC 575/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY** ## **APPELLANT/ACCUSED:** JAYARAJAN,S/O SREEDHARAN, AGED 32 YEARS COOLIE, CHAMBALON HOUSE, MANATHANA AMSOM,, KOTTANCHURAM, KANNUR. BY ADVS. SUNIL NAIR PALAKKAT K.N.ABHILASH PROMY KAPRAKKATT SUCHITRA VARMA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 2211 of 2008 2 **K.BABU, J** . -------------------------------------Criminal Appeal No.2211 of 2008 --------------------------------------Dated this the 7[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 26.08.2008, passed by the Additional Sessions Court (Adhoc-II}, Thalassery in Sessions Case No.575/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and Rule 9 of Foreign Liquor Rules 1953. He was sentenced undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.06.2006 at 3.30 p.m the appellant/accused was found in possession of one bottle of ¾ litres and 3 bottles of one litre each Indian made foreign liquor behind Sree Narayana Light and Sound shop at Manathana in violation of the Crl.A No. 2211 of 2008 3 provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(b) 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 the appearance of the accused charges were framed against him for the offences punishable under Sections 55(a) and 55 (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 P8. 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 Crl.A No. 2211 of 2008 4 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 on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh under Section 58 of the Abkari Act and Rule 9 of Foreign Liquor Rules 1953. 6. Heard Sri.Sunil Nair Palakkat, 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/accused challenged 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 was eventually subjected to Crl.A No. 2211 of 2008 5 analysis in the Chemical Examiner's laboratory. It is further contended that the prosecution has not succeeded in proving the identity of the person who was found carrying the contraband substance at the scene of occurrence. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions. a) Ext.P1, seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. b) The specimen of the seal has not been produced before the Court and forwarded to the Chemical Examiner's Laboratory for verification. c) Various official who handled the sample during its transit from the place of occurrence to the laboratory through the Court were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Crl.A No. 2211 of 2008 6 d) The delay in production of the articles before the Court has not been explained by the prosecution. 9. The learned counsel for the appellant contended that the prosecution has not succeeded in establishing the identity of the person who was found carrying the contraband substance at the scene of occurrence. 10. PWs 4 and 5, the detecting officer and the police official who had accompanied him have no case that they had previous acquaintance with the accused. The independent witnesses, who were examined to prove the incident proper, did not support the prosecution case. Going by the evidence of the official witnesses, they had only a fleeting glimpse of the person who ran away from the scene. They identified the accused in the box after a long lapse of two years, in the year 2008. The official witnesses had no opportunity to identify the accused after the incident. No test identification parade was conducted in this case. Crl.A No. 2211 of 2008 7 11. It is well settled that where a witness identifies an accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation, it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police [AIR 2020 (SC) 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 (SC) 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 (SC) 367]** . So, on this ground alone the prosecution must fail. 12. The alleged seizure was effected on 21.06.2006. The bottle containing the sample was produced before the Court only on 23.06.2006. The Crl.A No. 2211 of 2008 8 prosecution has not offered any explanation for the delay in the production of the sample before the Court. 13. In **Ravi v. State of Kerala [2011 (3) KHC 121]** on the question of delay in production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1.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. Crl.A No. 2211 of 2008 9 14. 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 the samples could not be ruled out. 15. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P1 seizure mahazar. He has not given evidence as to the nature of the seal used. The sample remained in the custody of the property clerk of the Court till it reached the laboratory. There is no evidence to show the name of the police official with whom the sample was forwarded to the laboratory. Police Constable No.4060 delivered the sample in the laboratory on 24.08.2006. The property clerk of the Court and the police official who delivered the sample in the laboratory were not examined as witness in this case. 16. There is nothing to show that the specimen of Crl.A No. 2211 of 2008 10 the seal was forwarded to the Chemical Examiner's Laboratory for verification. Ext.P5, copy of the forwarding note, does not contain the specimen of the seal stated to have been affixed on the bottle containing the sample at the place of occurrence. The seal affixed against the space meant for specimen seal in Ext.P5 is the seal of the jurisdictional Magistrate. Therefore, the Chemical Examiner had no opportunity to verify the seal used by the detecting officer at the time of drawing the samples. 17. 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. 18. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached Crl.A No. 2211 of 2008 11 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 the contraband reaches the laboratory is required to be established by the prosecution. 19. 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 has 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 of strict Crl.A No. 2211 of 2008 12 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). 20. 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. Crl.A No. 2211 of 2008 13 21. 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. 22. In the instant case, the prosecution was unable to prove that the contraband substance seized from the place of occurrence was eventually examined at the Chemical Examiner's Laboratory. Therefore, Ext.P6, Certificate of Chemical Analysis has no evidentiary value. 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, therefore, not guilty of the aforesaid offences. He is acquitted of Crl.A No. 2211 of 2008 14 the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk