Kalidas Uchimakali v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 CRL.A NO. 1813 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED IN SC NO.249 OF 2008 OF III ADDITIONAL DISTRICT & SESSIONS COURT, THODUPUZHA / I ADDITIONAL MACT, THODUPUZHA APPELLANT/S: ``` ``` KALIDAS UCHIMAKALI, 5 MURI LINES, CHATTAMUNNAR NEW, DIVISION, KDH VILLAGE, DEVIKULAM TALUK. ``` ``` BY ADV SRI.JAISON JOSEPH ``` ## **`RESPONDENT/S:`** - **`1 STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA.`** - **`2 EXCISE INSPECTOR EXCISE RANGE DEVIKULAM.`** ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1813 of 2009 ..2.. **==> picture [82 x 15] intentionally omitted <==** --------------------------------------------- **Criminal Appeal No. 1813 of 2009** --------------------------------------------Dated this the 12[th] day of April 2024 ## **JUDGMENT** Aggrieved by the judgment dated 29.07.2009, passed by the III Additional Sessions Court, (Adhoc-I), Thodupuzha in S.C.No.249/2008, the appellant/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.1 Lakh. 2. The prosecution case is that on 08.8.2007 at 07.00 pm, the accused was found in possession of 4 litres of arrack at Chattamunnar New Division 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 Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** 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 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 3 and proved Exts.P1 to P5 and MO 1. Ext. X1 series were marked as Court Exhibit. 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. On the side of defence, DW1 was examined. After hearing the arguments addressed on Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** both sides, the Trial Court convicted the appellant/ accused for the aforesaid offence. 6. Heard the learned counsel appearing for the appellant/accused and the learned 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 has not succeeded in establishing that the contraband substance seized at the scene of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant submitted that the various officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. Exhibit P4 is the copy of the forwarding note. Exhibit P4 does not contain the name of the official with Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** whom the sample was forwarded to the laboratory. The space meant for entering the name of the official with whom the sample was forwarded is left vacant in Ext. P4. Ext. P5 Certificate of Chemical Analysis shows that the sample was delivered in the laboratory by an Excise Guard by name Sri. Vinesh C.S.. The Junior Superintendent of the Court, the Property Clerk and the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during the course of its transit from the Court to the laboratory is fatal to the prosecution as prosecution failed to rule out the possibility of the sample being changed or tampered with. 10. 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 Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 11. 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 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. 12. 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.** Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** **Daulath 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 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 S. 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 Crl.A.No.1813 of 2009 ..8.. **Sathi (supra)** has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353).** 13. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 14. 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. 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, Crl.A.No.1813 of 2009 **==> picture [20 x 9] intentionally omitted <==** therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to him as per law. The appeal is allowed as above. **Sd/-** **K. BABU JUDGE** kkj