K.M. Kunhambu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 CRL.A NO. 2338 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 353/2004 OF ADDITIONAL SESSN.COURT (ADHOC-II)KASARAGODE ``` ## **`APPELLANT/ACCUSED:`** ``` K.M.KUNHAMBU, S/O KUNHAMBU, NEELAYIL KALICHAL MOOLA, PEROLE VILLAGE, BY ADV T.SUDHAMANI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2338 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 30.08.2008, passed by the Additional Sessions Court [Adhoc - II], Kasargod in Sessions Case No.353/2004, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 05.05.2000 at 7.00 a.m. the accused was found in possession of 3 litres of arrack at Perol 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 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 ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** framed against him for the offence punishable under Section 55(a) 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 4 and proved Exts. P1 to P6. and MO 1. 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 and he was convicted thereunder. 6. Heard Smt. T. Sudhamani, the learned counsel appearing for the appellant/accused and Smt. Rekha S., ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 ground that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was eventually 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) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) PW1, the detecting officer, has not given evidence as to the nature of the seal used. - (iii) Various officials who handled the sample during its transit from the Court to the ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** Chemical Examiner’s Laboratory were not examined. - (iv) The prosecution has not offered any satisfactory explanation as to the delay in the analylsis of the sample. 9. The alleged seizure was effected on 05.05.2000. PW1, the Excise Inspector, Excise Circle Office, Hosdurg detected the offence. Ext. P2 is the seizure mahazar evidencing the arrest and seizure effected by PW1. Ext.P2 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample at the time of drawing sample. PW1, the detecting officer, has not given evidence as to the nature of the seal used. 10. The sample and the other properties were produced before the Court on 05.05.2000. The Junior Superintendent of the Court concerned received the sample. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Examiner’s Laboratory. The sample also remained in the custody of the property clerk of the Court. It reached the laboratory on 16.05.2000. The sample was delivered in the laboratory by Shri. Joykutty Joseph, an Excise Guard. Those officials were not examined by the Prosecution to rule out the possibility of the sample being changed or tampered with. Consequence of this omission is that the prosecution failed to prove the tamper-proof despatch of the sample to the laboratory. 11. 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. 12. 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 tamper- ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 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. 13. 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 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 ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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] **.** 14. 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. 15. Yet another aspect that deserves consideration is the delay in the analysis of the sample. Though the ``` CRL.A NO. 2338 OF 2008 ``` ..9.. sample reached the laboratory on 16.05.2000, it was analysed only 17.04.2001. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 16. In the instant case, the delay of almost a year in analysing the sample has not been explained by the prosecution. ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 17. In the present case, the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was subjected to analysis in the Chemical Examiner‘s laboratory. Therefore, Ext.P6, Certificate of Chemical Analysis, has no evidentiary value. 18. 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 corelated. 19. 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 and other circumstances discussed above. ``` CRL.A NO. 2338 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** 20. 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 offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **Sd/K. BABU, JUDGE** kkj