Jose, S/o Varkey v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **CRL.A NO. 2570 OF 2008** **AGAINST THE JUDGMENT IN SC 119/2006 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE** ## **APPELLANT/ACCUSED:** JOSE, S/O VARKEY, AGED 55 YEARS, CHAKKALAYIL HOUSE, CHOORAMUNDA, KODENCHERRY AMSOM, DESOM, KOZHIKODE TALUK. BY ADVS. P.S.SREEDHARAN PILLAI C.G.PREETHA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA S. -SR.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2570 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2570 of 2008 --------------------------------------Dated this the 22[nd] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 03.10.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in S.C.No.119/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act. The accused was 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 12.02.2002 at 3.10 p.m., the appellant/accused was found in possession of 7 litres of arrack at Kodencherry amsom, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offences punishable under Sections 8(2) and 55(a) 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 Crl.A No.2570 of 2008 3 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. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P6 and MO1. 5. After the closure of the prosecution evidence, 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 offence. 6. Heard Sri. Arjun Sreedhar, 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 prosecution failed to prove that the contraband substance allegedly Crl.A No.2570 of 2008 4 seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) 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. - (ii) The detecting officer has not given evidence as to the nature and description of the seal used. - (iii) The prosecution has not given evidence as to the date on which the properties, including the sample, were produced before the Court. - (iv) The property list was not produced and marked. - (v) The officials who handled the sample during its transit to the laboratory were not examined. 8. The alleged seizure and arrest were effected on 12.02.2002. The detecting officer (PW1) had prepared Ext.P1 seizure mahazar. He 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 also not given evidence as to the nature and description of the seal used. Crl.A No.2570 of 2008 5 9. The prosecution has not adduced any evidence to show the date on which the properties, including the sample, were produced before the Court. The property list has not been produced and marked. There is also nothing to show that the specimen of the seal was produced before the Court along with the properties. In the absence of any evidence as to the date on which the sample was produced before the Court, it has to be concluded that the prosecution failed to establish the genuineness of the sample produced before the Court. 10. The prosecution has also not given evidence as to the date on which the sample was forwarded to the laboratory from the Court. Exhibit P5, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 07.04.2002 of the Judicial First Class Magistrate-II, Thamarassery. The sample reached the laboratory on 08.04.2002. It is seen that the sample was delivered to the laboratory through Sri. K.V.Janardhanan, the Excise Guard. 11. The sample remained in the custody of the Court, the duration of which is not forthcoming in the evidence. It might have been in the custody of the property clerk. The Excise Guard by 6 Crl.A No.2570 of 2008 name, Sri. K.V.Janardhanan, handed over the sample to the laboratory. The inference from Ext.P5 is that Sri. K.V.Janardhanan, received the sample on 07.04.2002 from the Court and delivered it to the laboratory on 08.04.2002. The official concerned of the Court with whom the sample remained and the Excise Official who delivered the sample to the laboratory were not examined by the prosecution. The omission on the part of the prosecution in not examining these witnesses is fatal. Thus, 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 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 Crl.A No.2570 of 2008 7 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 (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 Crl.A No.2570 of 2008 8 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 instant case, the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 17. The delay in the analysis of the sample in the laboratory is also significant. Though the sample reached the laboratory on 08.04.2002, it was subjected to analysis on 04.04.2003. 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 Crl.A No.2570 of 2008 9 ## 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 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. The unexplained delay of almost one year in analysing the sample is also fatal to the prosecution. ## 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 Crl.A No.2570 of 2008 10 [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 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 accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS