Kunhikkari v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 16[TH] DAY OF NOVEMBER 2022 / 25TH KARTHIKA, 1944** **CRL.A NO. 282 OF 2008** **AGAINST THE JUDGMENT IN SC 8/2007 OF ADDITIONAL SESSIONS COURT** **FAST TRACK-III (ADHOC), MANJERI** **CP 78/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAPPANANGADI** ## **APPELLANT/ACCUSED:** KUNHIKKARI, S/O.KARIKUTTY,KANNAMANGALAM AMSOM, CHEREKKAD DESOM, KOTTADAN VEEDU, TIRURANGADI TALUK. BY ADV SMT.P.MAYA ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 16.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.282 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.282 of 2008 --------------------------------------Dated this the 16[th] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 29.01.2008, passed by the Additional Sessions Court, Fast Track No.III (Adhoc), Manjeri in S.C.No.8/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.09.2005 at 12.25 p.m, the accused was found in possession of 2.5 litres of illicit arrack at Kannamangalam 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 made over to the Trial Court. On the appearance of the accused, Crl.A No.282 of 2008 3 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 P11 and MO1. 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. P.Vijaya Bhanu, the learned Senior counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned Senior counsel for the appellant challenged the judgment of conviction and sentence on the ground that the Crl.A No.282 of 2008 4 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 Senior counsel for the appellant contended that the prosecution failed to establish the chain of custody of the sample during its transit from the Court to the laboratory. 9. The alleged seizure was effected on 09.09.2005 . The properties, including the sample, were produced before the Court on 09.09.2005 by the Excise Inspector (PW4). Exhibit P5 property list shows that the Junior Superintendent of the Court received the sample on 09.09.2005. It remained in the custody of the property clerk. The prosecution has not given evidence regarding the date on which the sample was forwarded to the laboratory. Exhibit P6 forwarding note/requisition for sending sample does not contain the date on which the sample was forwarded to the laboratory. Exhibit P9 Certificate of Chemical Analysis would show that the sample was delivered in the laboratory through an Excise guard by name Sri.Biju on 07.10.2005. 10. The learned Senior counsel for the appellant contended Crl.A No.282 of 2008 5 that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the course of its transit from the Court to the laboratory, in view of the lack of evidence regarding the date on which the sample was forwarded to the laboratory and the failure of the prosecution to examine the various officials who handled the sample. 11. The prosecution failed to examine the Junior Superintendent of the Court who initially received the sample, the property clerk of the Court who retained the custody of the sample till it was forwarded to the laboratory, the Excise official who delivered the sample to the laboratory. Non-examination of those officials is fatal to the prosecution. 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 Crl.A No.282 of 2008 6 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. 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'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 Crl.A No.282 of 2008 7 (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 Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 15. In the present case, the prosecution could not establish the tamper-proof despatch of the sample to the laboratory. In Baburaj's case (supra) this Court held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 16. In the present case, as the prosecution failed to show that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.282 of 2008 8 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. 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 {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 has miserably failed to 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. 20. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the Crl.A No.282 of 2008 9 matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS