KUTTIANMARKANDY UNNI @ UNNIKRISHNAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 ``` ``` CRL.A NO. 1321 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT SC 1568/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY ``` ## **`APPELLANT:`** ``` KUTTIANMARKANDY UNNI @ UNNIKRISHNAN S/O RAIRU NAIR, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERY TALUK. BY ADV SRI.C.P.PEETHAMBARAN ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` SRI.G.SUSHEER P P ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1321 OF 2009 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## CRL.A.No.1321 of 2009 --------------------------------------Dated this the 27[th] day of February, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 28.04.2009 passed by the Additional Sessions Court, Adhoc-II, Thalassery, in Sessions Case No.1568/2005, the accused has preferred this appeal. The appellant/accused was convicted under Section 55 (a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.12.2000, the appellant was found transporting 60 packets each containing 100 ml of illicit arrack in a plastic bag in a stage carriage bearing registration No.KL-13-D-8487 plying on the ErittyKoottupuzha road, 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 ``` CRL.A NO. 1321 OF 2009 ``` ``` 3 ``` 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 him for the offence punishable under Section 55 (a) 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 4 and proved Exts.P1 to P6 and MOs. I to II series and MO.III. 5. After the closure of prosecution evidence 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.C.P.Peethambaran, the learned counsel appearing for the appellant/ accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. ``` CRL.A NO. 1321 OF 2009 ``` ``` 4 ``` 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 seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:i) Exhibit 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) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 9. The alleged seizure was effected on 21.12.2000. The detecting officer had prepared seizure mahazar at the scene of occurrence which is marked as Ext.P1. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been ``` CRL.A NO. 1321 OF 2009 ``` ``` 5 ``` used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. No material has been placed before the Court to show that the specimen seal was produced before the Court so as to enable the Court to ascertain the genuineness of the sample produced. 10. The sample was produced before the court on 21.12.2000 itself. The Junior Superintendent of the court received the sample. It remained in the custody of the property clerk. The sample was forwarded to the laboratory on 22.12.2000. Exhibit P6 would show that the sample reached the laboratory only on 23.12.2000. The sample was delivered in the laboratory through an Excise guard by name Sri.K.T. Chandrababu. The Junior Superintendent of the court, the property clerk and 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. 11. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the ``` CRL.A NO. 1321 OF 2009 ``` ``` 6 ``` 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 the contraband 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 theChemical Examiner in a tamper-proof condition. Relying on State of Rajastan v. Daulath 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 ``` CRL.A NO. 1321 OF 2009 ``` **==> picture [8 x 9] intentionally omitted <==** 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] . 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. Since the prosecution failed to establish that the sample reached the laboratory in a tamper-proof condition Exhibit P6, Certificate of Chemical Analysis has no evidentiary ``` CRL.A NO. 1321 OF 2009 ``` ``` 8 ``` value. 15. 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. 16. 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]}. 17. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 18. The upshot of the above discussion is that the ``` CRL.A NO. 1321 OF 2009 ``` **==> picture [8 x 9] intentionally omitted <==** conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- K. BABU JUDGE ## **`saap`**