Kunjappan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 CRL.A NO. 1071 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 811/2002 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA CP 182/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS - ``` ## **`II,KOTTARAKKARA`** ## **`APPELLANT/ACCUSED:`** ``` KUNJAPPAN, S/O. MATHAI, AGED 1 YEARS AJI VILASOM (KALOOLIL VEEDU), CHANKULAM MURI,, POOYAPPALLY VILLAGE. BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL ``` ## **`RESPONDENTS/COMPLAINANT/STATE:`** ``` 1STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. 2EXCISE INSPECTOR CHADAYAMANGALAM EXCISE RANGE. BY SMT. REKHA.S. (SR.P.P) ``` ## **`OTHER PRESENT:`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1071 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 12.06.2007, passed by the Additional Sessions Court, Kottarakkara, in Sessions Case No.811/2002, the accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 02.08.1999, at 1 p.m. the accused was found in possession of 17 polythene packets containing 150ml arrack each at Kattachal 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 ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The 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 P6 and MO 1 to MO 4 series. 5. After the closure of the evidence on behalf of the prosecution, 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 to 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. The accused was sentenced to undergo simple imprisonment for a term of two years and pay a ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** fine of Rs.1 Lakh under Sections 55(a) of the Abkari Act. No separate sentence was imposed under Section 8(2) of the Act. 6. Heard Sri. Vinoy Varghese Kallummoottil, 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 relied on the following circumstances to substantiate his contentions:- - (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) PW1, the detecting officer, has not given evidence as to the nature of the seal used. - (iii) The specimen seal stated to have been used was not produced before the Court and forwarded to the laboratory to ensure the ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** genuineness of the contraband substance produced before the Court. 8. The seizure was effected on 02.08.1999, by PW2, Excise Inspector, Excise Special Squad, Kollam. PW2 prepared Ext.P1 seizure mahazar evidencing seizure and arrest. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW2 has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court to ensure the genuineness of the sample produced. Forwarding note/requisition for sending sample was also not produced and marked. The forwarding note contains the specimen of the seal to facilitate the examiner to verify the genuineness of the sample forwarded for analysis. 9. The sample was produced before the Court on 03.08.1999. The sample remained in the custody of the property clerk of the Court. It was forwarded to Chemical Examiner as per letter dated 12.08.1999. The ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** sample was delivered in the laboratory by Shri. Sudhakaran Kani, an Excise Guard. The property clerk of the Clerk and the excise guard concerned were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 10. 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. 11. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** 12. 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 tamperproof 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 ``` CRL.A NO. 1071 OF 2007 ``` ..8.. 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** (supra) and **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] **.** 13. In **Bhaskaran v. State of Kerala** (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. 14. 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, ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** no evidentiary value can be attached to the chemical analysis report. 15. 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 tamper-proof 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 Chemical Examiner's laboratory. 16. In the present case the prosecution failed to establish that the contraband allegedly seized from the accused was forwarded to the Chemical Examiner’s Laboratory. 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 contraband substance cannot be conclusive proof by itself. The ``` CRL.A NO. 1071 OF 2007 ``` ..10.. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 19. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 20. 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. The appellant/accused is therefore found not guilty of the offence alleged. In the result, ``` CRL.A NO. 1071 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charges; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj