Kandoth Vanisseri Kunhikrishnan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 12[TH] DAY OF OCTOBER 2022 / 20TH ASWINA, 1944** **CRL.A NO. 1827 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 840/2006 OF ADDITIONAL SESSIONS** **COURT (ADHOC)-II, THALASSERY** ## **APPELLANT/ACCUSED:** KANDOTH VANISSERI KUNHIKRISHNAN, S/O.PAYYAN KUNHAMBU, AGED 59 YEARS,AGRICULTURIST, PADINHARAKKARA, KALLIAD AMSOM DESOM, TALIPARAMBA TALUK. BY ADVS. SRI.P.U.SHAILAJAN SMT.K.B.REKHA ## **RESPONDENT/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 12.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1827 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1827 of 2008 --------------------------------------Dated this the 12[th] day of October, 2022 ## JUDGMENT Aggrieved by the judgment dated 29.07.2008, passed by the Additional Sessions Court (Adhoc)-II, Thalassery in S.C.No.840/2006, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 23.07.2003 at 1.00 p.m, the accused was found in possession of 2 litres of illicit arrack at Kalliad in Taliparamba Taluk, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 55(a) 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 Crl.A No.1827 of 2008 3 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 P9 . 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. P.U.Shailajan, the learned counsel 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 challenged the judgment of conviction and sentence on the following grounds: Crl.A No.1827 of 2008 4 - (a) The officer who detected the offence is incompetent to effect detection and seizure. - (b) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The seizure was effected by PW1, an Excise Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad, Kannur. 9. The learned counsel for the accused 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 appellant 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 Circle Inspector of Excise Enforcement and Anti-Narcotic Special Squad, Kannur. The detection was made on 23.07.2003. The Government notification issued as SRO.No.234/1967 had authorised various categories of Crl.A No.1827 of 2008 5 Excise officials to discharge various functions under the 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 Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, 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 Circle Inspector, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 10. The learned counsel for the appellant/accused submitted Crl.A No.1827 of 2008 6 that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 11. The learned counsel for the appellant 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 alone, the prosecution must fail. 12. Exhibit P1 seizure mahazar was prepared by the detecting officer at the scene of occurrence to evidence search and seizure. Exhibit P1 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. Exhibit P5 forwarding note/requisition for sending sample shows that the specimen of the seal was not mentioned therein. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner for verification. 13. The sample remained in the custody of the property clerk Crl.A No.1827 of 2008 7 of the Court and the Excise official who delivered the sample to the laboratory. Exhibit P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 01.08.2003 of the Judicial First Class Magistrate-II, Kannur but the same reached the laboratory only on 02.08.2003. Neither the property clerk nor the Excise guard Sri.Abdul Basheer who delivered the sample to the laboratory was not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 14. 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. 15. A legal obligation is cast on the prosecution to prove that 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 8 Crl.A No.1827 of 2008 commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 16. 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 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 Crl.A No.1827 of 2008 9 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]. 17. In Bhaskaran K. v. State of Kerala and another (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. 18. 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. 19. Since the prosecution failed to show that the contraband Crl.A No.1827 of 2008 10 substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 20. 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. 21. 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]}. 22. 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 Crl.A No.1827 of 2008 11 ## evidence as discussed above. 23. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. ## The appeal is allowed as above. Sd/K.BABU, JUDGE KAS