KALLIKOTH VETTIL DASAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 11[TH] DAY OF OCTOBER 2022 / 19TH ASWINA, 1944 CRL.A NO. 1661 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 25.07.2008 IN SC 621/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY IN CP 15/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, MATTANNUR EXCISE RANGE ``` ## **`APPELLANT/ACCUSED:`** ``` KALLIKOTH VETTIL DASAN, S/O. KUTTAN NAIR, AGED 45, COOLIE, PADINHATEEMURI AMSOM DESOM, KOZHIKODE TALUK. ``` ``` BY ADVS. SRI.SUNIL NAIR PALAKKAT SRI.K.N.ABHILASH ``` ## **`RESPONDENT/STATE & COMPLAINANT:`** ``` STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 11.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1661 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No.1661 of 2008 --------------------------------------------- Dated this the 11[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 25.07.2008, passed by the Additional Sessions Court (Adhoc-II) , Thalassery in Sessions Case No.621/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules, 1953 and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.04.2003 at 4.50 p.m., the accused was found to have carried and transported 51 bottles of Bejoice Blended Grape Brandy of 750 ml each, kept in 3 gunny bags in a Kerala State Road Transport Corporation bus bearing Registration No.KL 15-4244 at Vilamana amsom, Thalassery Taluk, 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 55 (a) of the Abkari Act read with Rule 9 of Foreign ``` Crl.A.No.1661 of 2008 ``` ``` 3 ``` Liquor Rules, 1953 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 him for the offence punishable under Section 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules, 1953. 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 P8. 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 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 55(a) of the Abkari Act read with Rule 9 of Foreign Liquor Rules, 1953 and convicted him thereunder. 6. Heard Sri.Sunil Nair Palakkat , the learned counsel ``` Crl.A.No.1661 of 2008 ``` ``` 4 ``` 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 contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: (i) The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The delay in bringing the sample to the laboratory after obtaining it from the Court has not been explained by the prosecution. 9. The alleged seizure was effected on 09.04.2003 by the Preventive Officer attached to the Koottupuzha Excise Check Post (PW1). PW1 arrested the accused and seized the contraband substance from the scene of occurrence. 10. In Ext.P1, seizure mahazar, the detecting officer has not narrated the nature and description of the seal used. ``` Crl.A.No.1661 of 2008 ``` ``` 5 ``` 11. In **Bhaskaran v. State of Kerala (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. 12. The bottle containing the sample remained in the custody of the property clerk of the Court, the Excise official who received the sample from the Court and the Excise official who delivered the sample to the laboratory. The prosecution has not examined these witnesses to rule out the possibility of the sample being changed or tampered with. 13. Yet another aspect that requires consideration is the delay in bringing the sample to the laboratory. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P8, Certificate of Chemical Analysis, shows that as per letter dated 10.04.2003 of the Judicial First Class Magistrate Court, Mattanur the sample was forwarded to the laboratory. But, the sample reached the laboratory only on 06.06.2003. The sample was delivered to the laboratory by Sri.P.M.Krishnan, an Excise Guard. He has not been ``` Crl.A.No.1661 of 2008 ``` ``` 6 ``` examined as a witness. The custody of the article during the period from 10.04.2003 to 06.06.2003 has not been explained by the prosecution. 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.” 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 tamperproof condition. 15. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The resultant conclusion is that Ext.P8 ``` Crl.A.No.1661 of 2008 ``` ``` 7 ``` Certificate of Chemical Analysis has no evidentiary value. 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. 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 upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking ``` Crl.A.No.1661 of 2008 ``` ``` 8 ``` 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** VPK