Kootta Mohanan & Kattan Aneesh v. The Sub Inspector of Police, Maloor Police Station & State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 15[TH] DAY OF NOVEMBER 2022 / 24TH KARTHIKA, 1944** ## **CRL.A NO. 917 OF 2008** ## **AGAINST THE JUDGMENT IN SC 117/2006 OF ADDITIONAL SESSIONS COURT** **(ADHOC-I), THALASSERY** ## **APPELLANTS/ACCUSED 1 AND 2:** 1 KOOTTA MOHANAN, KOLLIYIL HOUSE, SIVAPURAM AMSOM, MALOOR KAROTH VAYAL. 2 KATTAN ANEESH, PUTHANPURAYIL HOUSE, SIVAPURAM AMSOM, KAVINMOOLA. BY ADV SRI.CIBI THOMAS ## **RESPONDENTS/COMPLAINANT & STATE:** 1 THE SUB INSPECTOR OF POLICE, MALOOR POLICE STATION. 2 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 15.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.917 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.917 of 2008 --------------------------------------Dated this the 15[th] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 28.04.2008, passed by the Additional Sessions Court, Adhoc-I, Thalassery in S.C.No.117/2006, the two accused have preferred this appeal. Appellant No.1/accused No.1 was convicted under Section 58 of the Abkari Act and appellant No.2/accused No.2 was convicted under Section 55(g) of the Abkari Act. They were sentenced to undergo simple imprisonment for a term of six months each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 09.05.2005 at 11.45 p.m the accused were found storing 4 litres of arrack and 900 litres of wash in the property of one Cheerutty at Karoth vayal of Sivapuram amsom in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 58 and 55(g) of the Abkari Act before the jurisdictional Crl.A No.917 of 2008 3 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 them for the offences punishable under Sections 58 and 55(g) of the Abkari Act. The accused 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 4 and proved Exts.P1 to P7. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants/accused for the aforesaid offences. 6. Heard Sri. Cibi Thomas, the learned counsel appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondents. Crl.A No.917 of 2008 4 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the ground 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 appellants relied on the following circumstances to substantiate his contentions: - (a) Exhibit P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the samples. - (b) The delay in the production of the properties, including the samples, has not been satisfactorily explained. - (c) The prosecution failed to establish the tamper-proof despatch of the samples to the laboratory. 9. The alleged seizure was effected on 09.05.2005. The detecting officer had drawn samples at the scene of occurrence Crl.A No.917 of 2008 5 and prepared Ext.P2 seizure mahazar to evidence seizure. Exhibit P2 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the samples. The detecting officer has not given evidence as to the nature of the seal used. 10. 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. 11. Though the samples were drawn on 09.05.2005 the properties, including the samples, were produced before the Court only on 12.05.2005, which is evident from Ext.P4 list of properties. The prosecution has not offered any explanation for the delay in the production of the samples before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized Crl.A No.917 of 2008 6 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 Ravis' 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. 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. Relying on Kumaran v. State of Kerala [2016 (4) KLT 718] the learned counsel for the appellants contended that the prosecution failed to establish the tamper-proof despatch of the samples to the laboratory. The learned counsel relied on Ext.P5 forwarding note to substantiate his contention. In Ext.P5 the date on which the samples were forwarded to the laboratory has not Crl.A No.917 of 2008 7 been mentioned. The name of the officer with whom the samples were forwarded has also not been entered in Ext.P5. Though the learned Magistrate countersigned Ext.P5, he has not put the date on which he made his initial. While dealing with a similar fact situation, this Court in Kumaran v. State of Kerala [2016 (4) KLT 718], ## held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof Crl.A No.917 of 2008 8 despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 14. Exhibit P7 Certificate of Chemical Analysis does not show the date on which the bottles containing the sample were forwarded to the laboratory. Exhibit P7 shows that the sample was delivered to the laboratory on 06.06.2005. The bottles containing the sample remained in the custody of the property clerk and the Police officer, who received the same from the Court and delivered to the laboratory. None of these witnesses were examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. Non-examination of those officials, who handled the sample during its transit from the Court to the laboratory, is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 15. Since the prosecution failed to establish that the Crl.A No.917 of 2008 9 contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P7 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 has miserably failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link Crl.A No.917 of 2008 10 evidence as discussed above. 19. 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 appellants/accused are acquitted of the offences alleged. They are set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS