Kunju Pilla v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 CRL.A NO. 460 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 27/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA ``` ## **`APPELLANT/ACCUSED:`** ``` KUNJU PILLA, S/O RAMAN, KOCHUVILAYIL PUTHEN VEETTIL, VETTIYAR MURI,MAVELIKKARA. BY ADVS. SRI.GEORGE VARGHESE(PERUMPALLIKUTTIYIL) SRI.A.R.DILEEP SMT.KAVITHA GANGADHARAN ``` ## **`RESPONDENTS/STATE AND COMPLAINANT:`** ``` 1STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2EXCISE INSPECTOR MAVELIKKARA EXCISE RANGE,MAVELIKKARA. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 460 OF 2007 ``` ..2.. ## **JUDGMENT** This appeal is directed against the judgment dated 07.02.2007 in S.C.No.27/2002 on the file of the Additional Sessions Court Fast Track (Adhoc), Mavelikkara. 2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 03.11.1998, at about 12.00 p.m., the appellant/accused was found in possession of 1500ml of illicit arrack in two bottles near Moorthi temple, Palathingal, Vettiyar Village. 4. After completing the investigation, final report was submitted against the appellant before the Judicial First Class Magistrate Court, Mavelikkara. The case was committed to the Sessions Court, Alapuzha, from where it ``` CRL.A NO. 460 OF 2007 ``` ..3.. was made over to the Trial Court. On the appearance of the accused, the Court framed charge against him. He pleaded not guilty to the charge. 5. The prosecution examined PWs1 to 6 and proved Exts.P1 to P7 and MOs 1 to 3. 6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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 as aforesaid. 7. Heard Sri.George Varghese Perumpallikuttiyil, the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. ``` CRL.A NO. 460 OF 2007 ``` ..4.. 8. The learned counsel for the appellant/accused contended that the prosecution miserably failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 9. The learned counsel relied on the following circumstances to establish his contentions:- - (i) The nature and description of the seal stated to have been affixed on the sample allegedly drawn from the scene of occurrence had not been narrated in Ext.P1 seizure mahazar. - (ii) There is nothing to show that the specimen impression of the seal was forwarded to the Chemical Examiner’s Laboratory. 10. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been ``` CRL.A NO. 460 OF 2007 ``` ..5.. mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note was prepared and forwarded to the Chemical Examiner’s laboratory. The law on these aspects was considered by this Court in **Baburaj v. State of Kerala [2021 (6) KLT 416].** Following a series of precedents in **Baburaj** (supra), this Court held thus:- “22. 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. 23. 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. 24. 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- ``` CRL.A NO. 460 OF 2007 ``` ..6.. 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 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] **.** 25. 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. 26. 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, no evidentiary value can be attached to the chemical analysis report. 27. 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 ``` CRL.A NO. 460 OF 2007 ``` ..7.. ## eventually reached the Chemical Examiner's laboratory.“ 11. The Apex Court in **Vijaya Pandey v. State of U.P.** (AIR 2019 SC 3569) while examining the provisions of the NDPS Act held thus:- “the failure of the prosecution in the case to relate the seized sample with that seized from the appellant, makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of the Laboratory report that the sample tested was narcotics cannot be conclusive proof by itself.” 12. A survey of the precedents on the subject leads to the conclusion 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 ofence punishable under the Abkari Act. 13. In the instant case, this Court noticed the following loopholes in the prosecution evidence. - (i) Ext.P1 seizure mahasar does not contain the nature and description of the seal stated to have ``` CRL.A NO. 460 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** been affixed on the bottles containing the sample. - (ii) No specimen seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. - (iii) The detecting officer has not given evidence as to the nature and description of the seal used. - (iv) The sample changed several hands before reaching the laboratory. All the officials who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. - (v) The forwarding note/requisition for sending sample to the laboratory was not produced and marked. 14. The resultant conclusion is that Ext.P6 Certificate of Chemical Analysis has no evidentiary value to connect the appellant with the offence alleged. ``` CRL.A NO. 460 OF 2007 ``` ..9.. 15. 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. 16. 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, not guilty of the offence punishable under Section 55(a) of the Kerala Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. **Sd/K. BABU, JUDGE** kkj