JOSHY and PRAKASAN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944 ``` ## **`CRL.A NO. 772 OF 2008`** ``` AGAINST THE JUDGMENT DATED 06.03.2008 IN SC 650/2006 OF ``` ## **`ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOZHIKODE APPELLANTS/ACCUSED:`** ``` 1JOSHY, AGED 27 YEARS, S/O. BALAN, MAMMILVEETTIL, KEEZHARIYOOR AMSOM, NADUVATHOOR DESOM, KOYILANDY. ``` ``` 2PRAKASAN, AGED 34, S/O. GOPALAN MAMMILIIKUNIYIL, KEEZHARIYOOR AMSOM, NADUVATHOOR AMSOM, KOYILANDY. ``` ``` BY ADV SRI.SANTHARAM.P ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.772 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 772 of 2008 --------------------------------------------- Dated this the 2[nd] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 06.03.2008, passed by the Additional District & Sessions Court, Fast Track (Adhoc-II), Kozhikode in Sessions Case No.660/2006, the two accused have preferred this appeal. The appellants/accused were convicted under Section 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 each. 2. The prosecution case is that on 29.5.2003 the appellants/accused were found in possession of 30 litres of illicit arrack in an auto-rickshaw bearing Registration No. KL-11-G-8752 at Viyyur, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 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 the appearance of the accused charge was framed against them for the offence punishable under ``` Crl.A.No.772 of 2008 ``` ``` 3 ``` Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P6 and MO1 series. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was 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. The Trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted them thereunder. 6. Heard both sides. 7. The arrest and seizure were effected by the Preventive Officer of Excise Intelligence Squad (PW1), Kozhikode. When the Excise team led by PW1 reached the place of occurrence they found an auto-rickshaw bearing Registration No. KL-11-G-8752. The Excise team intercepted the vehicle and searched the cans kept in the auto-rickshaw. PW1 ascertained that the Cans contained illicit arrack. The accused/appellants were arrested and the contraband ``` Crl.A.No.772 of 2008 ``` ``` 4 ``` substance was seized. PW1 collected the liquor contained in the Cans in three bottles to be used as sample. PW1 entrusted the appellants and the contraband substance in the vehicle involved in the case with an Excise Inspector, Excise office, Quilandi. PW4 conducted the investigation and submitted final report. 8. The learned counsel for the appellants challenged the judgment of conviction and sentence on the ground that the prosecution failed to prove the tamper-proof despatch of the sample from the Court to the laboratory. 9. The bottles containing the sample were produced before the Court on 30.05.2003. The prosecution has not adduced any evidence as to the date on which bottle containing the sample was forwarded to the Chemical Examiner’s Laboratory. Ext.P5, the Certificate of Chemical Examination shows that the bottles containing the sample were forwarded to the laboratory as per letter dated 30.05.2003 of the Judicial First Class Magistrate, Quilandi. The sample reached the laboratory only on 02.06.2003. The sample was delivered in the laboratory by Sri.K.P.Manoj Kumar, an Excise Guard. 10. In the absence of any contra evidence, the necessary inference is that the samples were forwarded to the laboratory from the Court on 30.05.2003. The prosecution has not offered any ``` Crl.A.No.772 of 2008 ``` ``` 5 ``` explanation for the delay in bringing the sample to the laboratory. The samples remained in the custody of the Property Clerk of the Court and Sri.K.P.Manoj Kumar, Excise Guard who delivered the sample in the laboratory. Those witnesses were not examined by the prosecution. The inevitable consequence is that the prosecution has failed to rule out the possibility of the samples being changed or tampered with. This view is supported by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314). 11. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 12. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after ``` Crl.A.No.772 of 2008 ``` ``` 6 ``` the same was forwarded from the Court, it cannot be concluded that the sample reached the laboratory in a tamper-proof condition. 13. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned Counsel for the appellants relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case, the offence was detected by PW1, the Preventive Officer, Excise Intelligence Squad, Kozhikode. The detection was made on 29.05.2003. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise officials to discharge the various functions under the Kerala Abkari Act as Abkari officers. By the said notification, only Abkari officials attached to Excise Range offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise ``` Crl.A.No.772 of 2008 ``` ``` 7 ``` Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Preventive Officer, Excise Intelligence Squad, Kozhikode had no such powers. 14. The learned Counsel for the appellants/accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 15. The learned Counsel for the appellants/accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar fact situation, this Court in **Suresh's case** (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 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 ``` Crl.A.No.772 of 2008 ``` ``` 8 ``` conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 17. 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]}. 18. 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. 19. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. Sd/- ``` K.BABU JUDGE ``` VPK