Joseph Varghese v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 21[ST] DAY OF FEBRUARY 2024 / 2ND PHALGUNA, 1945 ``` ``` CRL.A NO. 900 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT SC 504/2005 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, PATHANAMTHITTA ``` ## **`APPELLANT:`** ``` JOSEPH VARGHESE S/O.KURIAKOSE VARGHESE, WARD NO.X,, MULAVANA VEEDU, MONEY MURI,, THRIKODITHANAM VILLAGE, CHANGANASSERY TALUK. BY ADV SRI.P.HARIDAS ``` ## **`RESPONDENTS:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. 2THE EXCISE INSPECTOR MALLAPPALLY EXCISE RANGE,, MALLAPPALLY RANGE. SRI.G.SUDHEER. P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 900 OF 2009 ``` ``` 2 ``` ## . **K.BABU, J** -------------------------------------- ## Crl.A.No.900 of 2009 --------------------------------------- ## **Dated this the 21[st] day of February, 2024** ## **J U D G M E N T** Aggrieved by the judgment dated 25.04.2009, passed by the Additional District and Sessions Court (Adhoc) Fast Track Court-II, Pathanamthitta in Sessions Case No.504/2005, accused No.1 has preferred this appeal. The appellant was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.01.2002 at about 12.30 p.m., the accused was found in possession of four litres of spirit in a plastic can, near Kiliyankavu, at EzhumattoorMallappally road in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused 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 ``` CRL.A NO. 900 OF 2009 ``` ``` 3 ``` where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6, and marked Exts.P1 to P9 and MOs. 1 and 2. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of the defence DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offences. Accused No.2 is acquitted of the offence alleged. 6. Heard Sri. P.Haridas, the learned counsel appearing for the appellant/accused and Sri.G. Sudheer, the learned public ``` CRL.A NO. 900 OF 2009 ``` ``` 4 ``` prosecutor, appearing for the respondent. 7. The learned counsel for the appellant/accused challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband 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: a) Exhibit P3 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 was not produced before the court and forwarded to the Chemical Examiner's Laboratory. c) The various officials who handled the sample during its transit from the place of occurrence to the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 29.01.2002. The detecting officer had drawn sample at the scene of occurrence. He prepared Exhibit P3 seizure mahazar to evidence seizure. ``` CRL.A NO. 900 OF 2009 ``` ``` 5 ``` Exhibit P3 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. The specimen of the seal was not produced before the court to ensure the genuineness of the sample. 10. Exhibit P7 is the copy of the forwarding note. Exhibit P7 does not contain the specimen of the seal used to facilitate the examiner to ascertain the genuineness of the sample produced. There is absolutely no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory to ascertain the genuineness of the sample. The sample remained in the custody of the property clerk. Exhibit P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 04.02.2002 of the Judicial First Class Magistrate Court, Thiruvalla. The sample was delivered in the laboratory on 05.02.2002 through an excise guard by name Sri. Mohammed Basheer Rawther. Neither the property clerk nor the excise guard who delivered the sample in the laboratory were examined by the ``` CRL.A NO. 900 OF 2009 ``` ``` 6 ``` prosecution to rule out the possibility of the sample being changed or tampered with. Non examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. 11. 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. 12. 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 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. 13. 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 ``` CRL.A NO. 900 OF 2009 ``` ``` 7 ``` 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]** . 14. In **Bhaskaran v. State of Kerala (2020 KHC 5296),** this Court held that the nature of the seal used by the ``` CRL.A NO. 900 OF 2009 ``` ``` 8 ``` 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. 15. 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. 16. 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. 17. In the present case, the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. ``` CRL.A NO. 900 OF 2009 ``` ``` 9 ``` 18. The upshot of the above discussion is that the conviction and sentence 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** saap