Kunhu @ Kuttisankaran 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. 900 OF 2008** **AGAINST THE JUDGMENT IN SC 411/2006 OF ADDITIONAL SESSIONS COURT,** **FAST TRACK COURT NO.III (ADHOC), MANJERI CP 69/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR** ## **APPELLANT/ACCUSED:** KUNHU @ KUTTISANKARAN, S/O.VALLIYIL KORUTTY, EDAKKARA AMSOM, KUNIPALA DESOM, NILAMBUR TALUK. BY ADVS. SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL ## **RESPONDENT/COMPLAINANT:** 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 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.900 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.900 of 2008 --------------------------------------Dated this the 1[st ] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 16.04.2008, passed by the Additional Sessions Court, Fast Track Court No.III (Adhoc), Manjeri in S.C.No.411/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and was 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 08.09.2004, at about 3.30 p.m, the appellant/accused was found in possession of 2 litres of illicit arrack on the Panchayat road at Kunippala. 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 Court. 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 Crl.A No.900 of 2008 3 under Sections 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 P9 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. On the side of the defence, Exts.D1 to D3 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant 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 counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance Crl.A No.900 of 2008 4 allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned Senior Counsel relied on the following circumstances to substantiate his contentions: - (i) The detecting officer (PW3) has not narrated the - nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) PW3 has not given evidence as to the nature and description of the seal stated to have been affixed on the sample. - (iii) The prosecution has not given evidence as to the date on which the bottle containing the sample was - forwarded to the laboratory. - (iv) The officials concerned who handled the sample during its transit from the Court to the laboratory were not examined. 8. The seizure was effected by PW3. He has prepared Ext.P1 seizure mahazar to evidence arrest and seizure. 9. Exhibit P1, seizure mahazar does not contain a specific - description of the seal stated to have been affixed on the bottle Crl.A No.900 of 2008 5 containing the sample. PW3, the detecting officer has not given evidence as to the nature and description of the seal used. 10. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the Court {Vide: Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. State of Kerala [2016 (1) KLD 391], Krishnadas v. State of Kerala (2019 KHC 191)}. 11. The alleged seizure was on 08.09.2004. The Joint Chemical Examiner to Government, Kerala, examined a bottle containing 200ml of liquor received in the laboratory on 10.08.2004, almost a month prior to the incident. The necessary inference is that the sample which was analysed in the laboratory was not the one drawn from the contraband substance allegedly recovered from the possession of the accused. 12. The crux of the offences under the Abkari Act, by its very Crl.A No.900 of 2008 6 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 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 Crl.A No.900 of 2008 7 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 Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 15. 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. 16. The sample remained in the custody of the property clerk Crl.A No.900 of 2008 8 of the Court from 09.09.2004 till the same was forwarded to the Chemical Examiner's laboratory. The sample was delivered to the laboratory through an Excise guard by name A.P.Ummerkutty. These officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 17. In the present case, Ext.P7 makes it clear that the sample stated to have been forwarded from the Court was not subjected to analysis in the laboratory. Therefore, Ext.P7 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. 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 Crl.A No.900 of 2008 9 [2007 (1) KHC 275]}. 20. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the samples analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. 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