Karthiyayani, d/o Appunni v. State of Kerala & The Sub Inspector of Police, Sreekrishnapuram Police Station, Palakkad

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 CRL.A NO. 629 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 280/2006 OF ADDITIONAL ``` ``` DISTRICT COURT (ADHOC)-II, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` KARTHYAYANI,D/O APPUNNI RESIDING AT CHUNDAYIL VEEDU, ATTASSERI, KOTTAPPURAM, OTTAPALAM TALUK, PALAKKAD DISTRICT. BY ADVS. T.C.SURESH MENON P.S.APPU JIBU P THOMAS ``` ## **`RESPONDENTS/S:`** ``` 1THE STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2THE SUB INSPECTOR OF POLICE SREEKRISHNAPURAM POLICE STATION, PALAKKAD. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 29.02.2008 passed by the Additional Sessions Court, (Fast Track Court No.II), Palakkad in Sessions Case No.280/2006, the accused has preferred this appeal. The appellant/accused was convicted under Sections 55(g) and 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a period of 2 years and pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 25.02.2005, at 11 a.m., the appellant/accused was found distilling illicit arrack on the eastern side of the kitchen of her house bearing door No.XIII/47 of Karimpuzha Panchayat. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, charges were framed against her for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, she came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs1 to 7 and proved Exts.P1 to P10 and MOs 1 to 8. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. She pleaded total innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** convicted the appellant for the aforesaid offences. 6. Heard Shri. T.C. Suresh Menon, the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds:- - (i) The inordinate delay in the production of the sample and other articles before the Court has not been satisfactorily explained by the prosecution. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. ``` CRL.A NO. 629 OF 2008 ``` ..5.. 8. The alleged seizure was on 25.02.2005. Ext.P6, the list of properties sent to the Magistrate shows that the sample collected from the scene and the other articles were produced before the Court only on 02.03.2005. The prosecution has not offered any satisfactory explanation for the delay in the production of sample and other properties before the Court. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay, in the production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” [Emphasis supplied] In **Ravi's case** (supra) the Division Bench held that ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 11. I have carefully examined Ext.P3 search list, Ext.P5 scene mahazar and other contemporaneous documents prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been mentioned either in the search list or in any other contemporaneous documents. 12. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 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. 13. 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 commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 14. 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. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** **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 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 ``` CRL.A NO. 629 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] **.** 15. 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. 16. 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. 17. In **Ramachandran v. State of Kerala** [2021 (1) KLT 793] while dealing with a case in which ``` CRL.A NO. 629 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. [vide: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **Sasidharan v. State of Kerala** [2007(1) KHC 275]. 18. A survey of the precedents on the subject leads to the conclusion that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. ``` CRL.A NO. 629 OF 2008 ``` ..11.. 19. In the instant case, this Court noticed the following deficiencies in the prosecution evidence:- - (i) Ext.P3 search list, Ext.P4 scene mahazar and other contemporaneous documents prepared at the scene of occurrence do not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample - (ii) The detecting officer has not given evidence as to the nature and description of the seal used. - (iii) The sample changed several hands before reaching the laboratory. All the officials who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 20. Ext. P10, Certificate of Chemical Analysis shows that the sample was forwarded from the Court on 11.04.2005 and the same reached the laboratory on ``` CRL.A NO. 629 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 12.04.2005. The custody of the sample during the interregnum has not been explained by the prosecution. 21. The resultant conclusion is that Ext.P10 Certificate of Chemical Analysis has no evidentiary value to connect the appellant with the offences alleged. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 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. The appellant/accused is, therefore, not guilty of the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. She is acquitted of the offences alleged. She is set at liberty. ``` CRL.A NO. 629 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** The appeal is allowed as above. Sd/- **K. BABU, JUDGE** kkj