Krishnan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944** **CRL.A NO. 2098 OF 2008** **AGAINST THE JUDGMENT IN SC 178/2006 OF ADDITIONAL SESSIONS COURT** **(FAST TRACK-II), ALAPPUZHA** **CP 9/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, AMBALAPUZHA** ## **APPELLANT/ACCUSED:** KRISHNAN, S/O NARAYANAN, EZHIL VEEDU, EDATHUA PANCHAYTH, WARD NO.10, PANCHAE MURI, EDATHUA VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. C.S.MANU ANOOP JOSEPH ABHILASH AKBAR S.K.PREMRAJ A.B.SHYMOL T.B.SIVAPRASAD ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE SUB-INSPECTOR OF POLICE, EDATHUA POLICE STATION, ALAPPUZHA DISTRICT. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2098 of 2008 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.2098 of 2008 --------------------------------------Dated this the 1[st ] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 02.09.2008, passed by the Additional Sessions Court, (Fast Track Court No.II), Alappuzha in S.C.No.178/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 11.04.2004 at about 8.30 a.m, the appellant/accused was found in possession of one litre of arrack on the north-west of Mariyapuram-Thayankari public road in Edathwa panchayat. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) 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 framed against him for the offence punishable under Crl.A No.2098 of 2008 3 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 4 and proved Exts.P1 to P7 and MOs 1 and 2. 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. On the side of the defence DWs 1 and 2 were examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. C.S.Manu, 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: - (i) The delay in the production of properties including Crl.A No.2098 of 2008 4 the sample has not been satisfactorily explained. - (ii) The prosecution failed to establish the tamperproof despatch of the sample from the place of occurrence to the laboratory through the Court. 8. The learned counsel for the appellant contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 11.04.2004. Exhibit P5 property list shows that the material objects were produced before the Court only on 15.04.2004. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 9. 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 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) Crl.A No.2098 of 2008 5 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 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 the sample could not be ruled out. 11. The alleged seizure was on 11.04.2004. Exhibit P1 is the seizure mahazar, prepared by the detecting officer to evidence the arrest and seizure. Exhibit P1, the seizure mahazar 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 and description of the seal stated to have been used. 12. The sample remained in the custody of the property clerk of the Court, the Police official who received the same from the Court and the official who delivered the same in the laboratory. None of these officials were examined by the prosecution to establish the tamper-proof despatch of the sample to the Crl.A No.2098 of 2008 6 laboratory. 13. In the present case, the prosecution failed to prove that the specimen of the seal was produced before the Court to ensure the genuineness of the sample produced. There is also nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's laboratory to enable the Analyst to ascertain the genuineness of the sample. 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 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 Crl.A No.2098 of 2008 7 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 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 Crl.A No.2098 of 2008 8 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. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof 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 Crl.A No.2098 of 2008 9 ## Chemical Examiner's laboratory. 20. The learned counsel for the accused disputed the arrest of the accused. He mainly relied on the presence of the crime number in Ext.P3 arrest memo to contend that the arrest of the accused at the spot is doubtful. Exhibit P3 contains the number of crime (53/2004) registered against the accused. While dealing with a similar fact situation this Court in Santhosh v. State of Kerala [2021 (5) KHC 214] held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)]” ## 21. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of crime number in Crl.A No.2098 of 2008 10 Ext.P3 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 22. In the absence of any convincing evidence to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory, Ext.P7, the Certificate of Chemical Analysis, has no evidentiary value. 23. 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. 24. 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]}. 25. In the instant case, the prosecution was unable to Crl.A No.2098 of 2008 11 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 as discussed above. 26. 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 accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS