Komala Bhaskaran v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 29[TH] DAY OF AUGUST 2022 / 7TH BHADRA, 1944 CRL.A NO. 896 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 24.03.2008 IN SC 82/2006 OF THE ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/1ST ACCUSED:`** ``` KOMALA BHASKARAN, AGED 42 YEARS, S/O KELAPPAN CHETTY, KARAMBATH HOUSE, THATHAM MUNI, MOOPPANADU, VYTHIRI, WAYANADU. ``` ``` BY ADVS. SRI.JESWIN P.VARGHESE SRI.K.RADHAKRISHNAN NAIR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ## **`THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 29.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:`** ``` Crl.A.No.896 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 896 of 2008 --------------------------------------------- Dated this the 29[th] day of August, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 24.03.2008, passed by the Additional Sessions Court (Adhoc)-II, Kalpettta in Sessions Case No.82/2006, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs. one Lakh. 2. The prosecution case is that on 17.04.2005, at night, the appellant/accused No.1 and the other accused (A2) were found distilling arrack at Nathamvayal in violation of the provisions of the Abkari Act. It was further alleged that accused No.3 in this case abetted the other accused in the commission of the offences. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8 (2) and 55(g) of the Abkari Act before the ``` Crl.A.No.896 of 2008 ``` ``` 3 ``` 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 charges were framed against accused Nos. 1 and 2 for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. They pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 9 and proved Exts. P1 to P9, MOs 1 to 9 and MOs 10 & 11 series. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The Trial Court, after hearing the arguments addressed on both sides, found accused Nos. 1 and 2 guilty of the offences under Sections 8(2) and 55(g) the Abkari Act and convicted them thereunder. Accused No.3 was found not guilty and was acquitted under Section 235(1) of the Cr.P.C. 6. Heard Sri. Jeswin P.Varghese, the learned counsel ``` Crl.A.No.896 of 2008 ``` ``` 4 ``` appearing for the appellant/accused No.1 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused No.1 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to chemical analysis. 8. The learned counsel for the appellant/accused No.1 relied on the following circumstances to substantiate his contentions:- (1) The delay in the production of the properties, including the bottles containing the sample, has not been satisfactorily explained by the prosecution. (2) There is no satisfactory explanation regarding the custody of the bottles containing the samples, during the interregnum from 17.04.2005 to 29.04.2005. 9. The alleged arrest and seizure were effected on 17.04.2005 by an Excise Preventive Officer(PW1). The ``` Crl.A.No.896 of 2008 ``` ``` 5 ``` properties, including the sample, were produced before the Court only on 19.04.2005, as is evident from Ext.P5, Property List submitted by the Excise Inspector, [PW3]. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. 10. 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) 11. In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. ``` Crl.A.No.896 of 2008 ``` ``` 6 ``` 12. 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. 13. The prosecution has not given any evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Ext.P9, Certificate of Chemical Analysis shows that four bottles containing the sample were forwarded to the Laboratory as per letter dated 17.04.2005 of the Chief Judicial Magistrate, Kalpetta. Ext.P9 further shows that the sample reached the Laboratory only on 29.04.2005. 14. It is relevant to note that, Ext.P5, property list would show that the bottles containing the sample reached the Court only on 19.04.2005. How did the Chief Judicial Magistrate, Kalpetta, forward the sample on 17.04.2005? The prosecution has no answer to this discrepancy. 15. Ext.P5 shows that the bottles containing the sample were received by the Head Clerk of the Court concerned. The officer who received the property in the Court, and the Excise Guard by Name Sri.M.Rajesh, who delivered the sample in the ``` Crl.A.No.896 of 2008 ``` ``` 7 ``` Laboratory, were not examined by the prosecution. 16. The resultant conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the Laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314).** In a case of this nature the prosecution has to establish that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 17. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 18. 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 ``` Crl.A.No.896 of 2008 ``` ``` 8 ``` {Vide: **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 19. 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. Accused No.1 is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, accused No.1 is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK