Joy s/o Poulose v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 6[TH] DAY OF JULY 2022 / 15TH ASHADHA, 1944 CRL.A NO. 2916 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 816/2007 OF ADDITIONAL SESSIONS COURT (ADHOC) FAST TRACK COURT NO.1, THRISSUR CP 78/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS - III,THRISSUR ``` ## **`APPELLANT/S:`** ``` JOY,S/O POULOSE AGED 41 YEARS PARIYARATH HOUSE, DARBHA DESAM,, MANNAMANGALAM VILLAGE, THRISSUR TALUK. BY ADV P.G.SURESH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY SR PUBLIC PROSECUTOR SMT REKHA S. ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2916 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 10.12.2008, passed by the Additional Sessions Court (Adhoc) Fast Track Court No.I, Thrissur in Sessions Case No.816/2007, the accused has preferred this appeal. The appellant was 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. One Lakh. 2. The prosecution case is that on 05.12.2004 at about 5.30 p.m., the accused was found in possession of 2.5 litres of illicit liquor at Mannamangalam 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 ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs. 1 to 7 and proved Exts. P1 to P10 and MO1. 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 hence he was called upon to enter on his defence and to adduce evidence, if any, he 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 him thereunder. 6. Heard Sri. P.G. Suresh, the learned counsel ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 challenges the judgment of conviction and sentence on the following grounds:- - (i) The very arrest and seizure as alleged by the prosecution is doubtful in view of the fact that the prosecution failed to produce the arrest memo. - (ii) The prosecution has not established that the arrack allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The case of the prosecution is that on 05.12.2004, PW6, the Excise Inspector, Excise Enforcement and Anti narcotic Special Squad, Thrissur, effected arrest and seizure. 9. It is relevant to note that in the instant case the ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** arrest memo has not been placed before the Court. The prosecution has no case that the arrest memo was prepared but it could not be produced before the Court. The necessary inference is that the arrest memo was not prepared at the time of alleged arrest. Therefore, the prosecution case built up on the foundation that the accused was arrested while possessing the contraband substance falls to the ground. 10. This Court in **Ramankutty v. Excise Inspector, Chelannur Range** [2013 (3) KHC 308] had considered a similar fact situation. This Court held that non-compliance of mandatory requirements to be complied with at the time of arrest is fatal to the prosecution as the seizure of the contraband has no existence without proving the factum of the arrest. Therefore in the absence of evidence regarding the preparation of the arrest memo and arrest intimation, the prosecution case regarding the arrest and seizure becomes doubtful. ``` CRL.A NO. 2916 OF 2008 ``` ..6.. 11. The learned counsel for the appellant relies on the following circumstances to contend that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. - (i) Ext.P6 forwarding note does not contain the specimen of the seal and the name of the excise guard with whom the sample was forwarded to the laboratory. - (ii) The delay in the production of the sample before the laboratory after obtaining the same from the Court has not been explained by the prosecution. 12. Ext. P6 is the forwarding note/the requisition for sending sample to the laboratory. The space for incorporating the specimen of the seal is left vacant in Ext.P6. The name of the official with whom the sample was forwarded is also not mentioned Ext.P6. The learned Magistrate has not countersigned in Ext.P6. ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 20.12.2004 of Judicial First Class Magistrate, Thrissur. The sample reached the laboratory only on 04.01.2005. The delay has not been explained by the prosecution. 13. 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.” ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 14. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 15. The sample remained in the custody of the property clerk till 20.12.2004. The sample was delivered in the laboratory through Shri Reghu, Excise Guard. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 16. 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. 17. A legal obligation is cast on the prosecution to ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof 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. 18. 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 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 ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** tampered with. In **Sathi v. State of Kerala** [2007 (1) ILR 718 (Ker.)], this Court re-emphasized 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** (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] **.** 19. 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 ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 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. 20. In the instant case, the prosecution therefore failed to show that the contraband allegedly seized from place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P8, Certificate of Chemical Analysis has no evidentiary value. 21. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 22. 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 ``` CRL.A NO. 2916 OF 2008 ``` ..12.. from the bulk quantity of the contraband substance said to have been seized from the possession of the accused. 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 benefit of doubt arising from the absence of link evidence as discussed above. 23. 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. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed; (ii) The judgment of conviction and sentence passed against the accused is set aside; (iii) The accused is acquitted of the offence alleged; ``` CRL.A NO. 2916 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iv) He is set at liberty; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj