Krishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 19[TH] DAY OF OCTOBER 2022 / 27TH ASWINA, 1944 CRL.A NO. 1067 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 29.05.2007 IN SC 1266/2005 OF ADDITIONAL DISTRICT COURT, FAST TRACK-II, PALAKKAD ``` ## **`APPELLANT/ACCUSED:`** ``` KRISHNAN, AGED 86 YEARS, S/O.CHAMIYAR, KOTTAYAMKADU HOUSE, ELAVANCHERRY. ``` ``` BY ADV SRI.C.C.THOMAS (SR.) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, EXCISE RANGE OFFICE, NENMARA, PALAKKAD DISTRICT, 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 19.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1067 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1067 of 2007 --------------------------------------------- ## Dated this the 19[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 29.05.2007, passed by the Additional Sessions Court, Fast Track-II, Palakkad in Sessions Case No.1266 of 2005, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.10.1997 at 12.30 p.m., the accused was found transporting 10 litres of illicit arrack in a plastic urn at Elavancherry 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 55(a) and 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 charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The ``` Crl.A.No.1067 of 2007 ``` ``` 3 ``` accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts. P1 to P9, and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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 offences under Sections 55(a) and 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. C.C.Thomas, 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 offence was detected by an incompetent officer. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to chemical analysis. ``` Crl.A.No.1067 of 2007 ``` ``` 4 ``` 8. The offence was detected by the Excise Inspector of Excise Enforcement and Anti Narcotic Special Squad, Palakkad (PW3). 9. The learned counsel for the accused contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW3, a Excise Inspector of Excise Enforcement and Anti Narcotic Special Squad, Palakkad. The detection was made on 29.10.1997. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 ``` Crl.A.No.1067 of 2007 ``` ``` 5 ``` Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was an Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Palalkkad had no such powers. 10. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 11. The learned counsel for the accused relied on **Suresh v. State of Kerala [2017 (2) KHC 891]** to substantiate his contentions. While dealing with a similar fact situation this Court in **Suresh's case (supra)** held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground alone, the prosecution must fail. 12. The learned counsel for the appellant also relied on the following grounds in support of his contentions:- ``` Crl.A.No.1067 of 2007 ``` ``` 6 ``` (i) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii) The officials who handled the sampled during its transit from the Court to the laboratory were not examined by the prosecution. 13. Ext.P1 is the seizure mahazar prepared by the detecting officer to evidence arrest and seizure. I have gone through Ext.P1 mahazar. It does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 14. The sample produced before the Court remained in the custody of the property clerk. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P4, Certificate of Chemical Analysis shows that the the sample reached the laboratory on 22.02.2000. It is further seen that the sample was delivered in the laboratory by two Excise Guards by name Jose and Gokulan. The property clerk of the Court and the Excise officials who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 15. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , this Court had occasion to elucidate on the legal obligation cast on the ``` Crl.A.No.1067 of 2007 ``` ``` 7 ``` 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 re-emphasized 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 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)** . 16. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting officer ``` Crl.A.No.1067 of 2007 ``` ``` 8 ``` 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. 17. In the instant case, the prosecution failed to show that the contraband seized from the scene of occurrence was subjected to chemical analysis. Therefore, Ext.P4 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 co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 19. 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]}. 20. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband ``` Crl.A.No.1067 of 2007 ``` ``` 9 ``` seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 21. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK