Kunjappan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU WEDNESDAY, THE 3[RD] DAY OF AUGUST 2022 / CRL.A NO. 1682 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 16.08.2007 IN SC 422/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/ACCUSED NO.1:`** ``` KUNJAPPAN, AGED 60 YEARS, S/O KOCHOLAN, PARUMPILLI VEEDU,CHILLITHODUKARA, IRUMPUPALAM, MANNAMKANDAM VILLAGE, DEVIKULAM TALUK,, VALARA P.O., IDUKKI DISTRICT. ``` ``` BY ADVS. SRI.S.P.ARAVINDAKSHAN PILLAY SMT.N.SANTHA ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE EXCISE RANGE INSPECTOR, ADIMALY THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1682 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No.1682 of 2007 --------------------------------------------- Dated this the 3[rd] day of August, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 16.08.2007, passed by the Additional Sessions Court (Adhoc)-II, Thodupzha in Sessions Case No.422 of 2006, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Sections 55(b) and 55(g) of the Abkari Act and 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 20.11.2004 at 6.00 p.m., at Chillithodu Kara, accused Nos.1 and 2 were found distilling arrack in violation of the provisions of the Abkari Act. Accused No.1 was arrested from the spot. Accused No.2 escaped from the scene of occurrence. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) 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 charge was framed against the accused for the ``` Crl.A.No.1682 of 2007 ``` ``` 3 ``` offences punishable under Sections 55 (b) and 55(g) of the Abkari Act. Accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P6, and MOs 1 to 6. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. Exts.D1 to D3 were marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offences under Sections 55(b) & 55(g) of the Abkari Act and he was convicted thereunder. Accused No.2 was found not guilty to the charges and he was acquitted. 6. Heard Sri.S.P.Aravindakshan, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused No.1 challenged the judgment of conviction and sentence on the ground ``` Crl.A.No.1682 of 2007 ``` ``` 4 ``` that the 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 counsel for the appellant/ accused No.1 relied on the following circumstances to substantiate his contentions: (1) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. (2) Ext.P5 forwarding note does not contain the name of the officer with whom the sample was forwarded to the laboratory. (3) The officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. Ext.P1 mahazar prepared by the detecting officer at the scene of occurrence to evidence the arrest and seizure does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature and description of the seal used. The detecting officer has also not produced the specimen of the seal used at the time of production of properties before the ``` Crl.A.No.1682 of 2007 ``` ``` 5 ``` Court. Ext.P5, the copy of the forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. The space meant to mention the name of the official with whom the sample was forwarded is left vacant in Ext.P5. Ext.P6, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 22.11.2004 of the Judicial First Class Magistrate, Adimali. The sample reached the laboratory on 23.11.2004. The sample was delivered to the laboratory by an Excise Guard by name Sri.V.R.Shaji. Ext.P4, Property List shows that the sample was received in the Court by the Junior Superintendent. It is also seen from Ext.P4 that the Property Clerk of the Court also handled the sample and forwarded the same to the laboratory. The Property Clerk of the Court, the Junior Superintendent and Sri.V.R.Shaji, the Excise Guard who delivered the sample to the laboratory, 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. ``` Crl.A.No.1682 of 2007 ``` ``` 6 ``` 11. 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. 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 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 ``` Crl.A.No.1682 of 2007 ``` ``` 7 ``` 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)** . 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. The non-mentioning of the name of the Excise Guard with whom the sample was forwarded to the laboratory is also fatal to the prosecution. This Court in **Kumaran v. State of Kerala** [2016 ## (4) KLT 718], while dealing with a similar fact situation held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding ``` Crl.A.No.1682 of 2007 ``` ``` 8 ``` note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 15. The delay in the analysis of the sample also remains unexplained. Though the sample reached the laboratory on 23.11.2004 it was subjected to analysis only on 04.04.2006. The prosecution has not offered any satisfactory explanation for the delay in analysis. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala** (2019 KHC 191) this Court held thus: ``` Crl.A.No.1682 of 2007 ``` ``` 9 ``` “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 16. In the instant case, the delay in the analysis of the sample has not been explained by the prosecution. 17. The resultant conclusion is that the prosecution has failed to prove that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P6 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 ``` Crl.A.No.1682 of 2007 ``` ``` 10 ``` 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 seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The conviction and sentence passed by the Trial Court cannot be sustained. In the result, the appellant/accused No.1 is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK