Krishnan v. State of Kerala

## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 ``` ``` CRL.A NO. 2431 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 471/2006 OF ADDITIONAL DISTRICT COURT ``` ``` (ADHOC), KOZHIKODE ``` ## `APPELLANT/ACCUSED:` ``` KRISHNAN AGED 45 YEARS, KALLADIKUNNUMMAL HOUSE, PUTHUPPADY AMSOM, DESOM, KOZHIKODE TALUK. ``` ``` BY ADV SRI.SUNNY MATHEW ``` ## `RESPONDENT/COMPLAINANT:` ``` STATE OF KERALA INSPECTOR, THAMARASSERY EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## `OTHER PRESENT:` ``` SMT. REKHA,GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON ``` ``` 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` CRL.A 2431 of 2008 2 ## **K.BABU, J.** ------------------------------------ ## **CRL.A 2431 OF 2008** ------------------------------------ **Dated this the 8[th] day of December, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 26.11.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-1), Kozhikode in S.C.No.471/2006, 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 11.10.2002 at 07.00 am, the accused was found possessing 3 litres of arrack in a 5 litre can at Chembrapatta, 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 8 (2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was CRL.A 2431 of 2008 3 made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under 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 6 and proved Exts.P1 to P8 and MO 1. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. Sunny Mathew, the learned counsel appearing for the appellant/accused, and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. CRL.A 2431 of 2008 4 7. The judgment of conviction and sentence is challenged on the ground 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. 8. The alleged seizure was effected on 11-10-2002. The properties including the sample were produced before the Court on 11-10-2002 itself. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. 9. The learned counsel for the accused contended that as per Ext.P3, Certificate of the Chemical Analysis, the sample was forwarded on 11-10-2002, but the same reached the laboratory only on 16-10-2002. I have gone through Ext.P3, Certificate of Chemical Analysis. Ext. P3 shows that the sample was forwarded to the laboratory as per letter dated 11-10-2002 of the JFMC-I, Thamarassery. It further shows that the sample reached the laboratory on 16-10-2002. The sample was delivered in the laboratory by Sri. Roy. K. Paul, an Excise Guard. Neither the property clerk who handled the sample at the time of sending the CRL.A 2431 of 2008 5 same from the Court nor the excise guard who delivered the sample in the laboratory was examined by the prosecution. In the absence of any contra evidence, this Court comes to the interference that the sample was forwarded on 11-10-2002, but the same reached the laboratory only on 16-10-2002. The prosecution has not given evidence as to the custody of the sample during the interregnum from 11-10-2002 to 16-10-2002. 10. While dealing with a similar fact situation, this Court in **Viswanathan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” CRL.A 2431 of 2008 6 11. In the absence of any satisfactory explanation for the custody of the sample during the interregnum from 11-10-2002 to 16-10-2002, the possibility of the sample being changed or tampered with during the course of transit from the Court to the laboratory cannot be ruled out. It is the bounden duty of the prosecution to explain the custody of the sample during the period from 11-10-2002 to 16-10-2002. 12. 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. 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 it CRL.A 2431 of 2008 7 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 tamper-proof 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 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 (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 CRL.A 2431 of 2008 8 to have been performed. This Court specified that the presumption under S. 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)** 15. In the instant case, the prosecution failed to establish the chain of custody of the sample during its transit from the Court to the laboratory. Therefore, Ext.P3 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 CRL.A 2431 of 2008 9 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. Resultantly, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analyzed in the laboratory. Therefore, the accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. The conviction and sentence recorded by the trial Court cannot 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** mtk