LajeeB v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 CRL.A NO. 2858 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 27.11.2008 IN CP 137/2007 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, KOLLAM SC 1222/2007 OF ADDITIONAL DISTRICT COURT (ADHOC), KOLLAM APPELLANT/ACCUSED: ``` ``` LAJEEB,S/O REGHUNATHAN, CHARUVILA THEKKATHIL VEEDU, KILIKOLLOOR CHERRI, KILIKOLLOOR VILLAGE, KOLLAM. ``` ``` BY ADV SRI.C.RAJENDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REP.BY SUB INSPECTOR OF POLICE, KILIKOLLOOR POLICE, STATION, THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA S.- SR.PP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2858 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A. No. 2858 of 2008 --------------------------------------------- Dated this the 21[st] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 27.11.2008, passed by the Additional District and Sessions Court-I (Adhoc), Kollam, in Sessions Case No.1222/2007, the accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 21.03.2003 at 12.15 p.m., the accused was found in possession of 60 plastic covers, each containing 100 ml of arrack near Peroor temple in Kottamkara village, 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) & 55(i) 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 ``` Crl.A.No.2858 of 2008 ``` ``` 3 ``` the accused charges were framed against him for the offences punishable under Section 55(a) & 55 (i) 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 3 and proved Exts. P1 to P8 and MOs I and II. 5. After the closure of the evidence on behalf of the prosecution, 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.C.Rajendran, 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 challenged the judgment of conviction and sentence on the following grounds:- - (1) The prosecution failed to establish the ``` Crl.A.No.2858 of 2008 ``` ``` 4 ``` conscious possession of the contraband substance by the accused. (2) The prosecution failed to establish that the arrack allegedly seized eventually reached the laboratory. 8. The alleged seizure and arrest were effected on 21.03.2003. The learned counsel for the accused disputed the arrest of the accused. He relied on the presence of the crime number in Ext.P2 arrest memo to contend that the arrest of the accused is doubtful. Ext.P2 contains the number of the crime registered against the accused. 9. While dealing with a similar fact situation in **Santhosh v.** ## **State of Kerala [2021 (5) KHC 214]** , this Court held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)].” ``` Crl.A.No.2858 of 2008 ``` ``` 5 ``` 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of crime number in Ext.P2 arrest memo a doubt arises as to the manner in which the arrest and seizure were effected. 11 The learned counsel relied on the following circumstances to substantiate his contention that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory:- - (a) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (b) The officials who handled the sample during its transit from the Court to the laboratory were not examined. 12. Though the seizure was allegedly effected on 21.03.2003, the properties including the sample reached the Court only on 24.03.2003, which is evident from Ext.P5 property list. The prosecution has not offered any explanation regarding the delay in the production of the properties including sample. 13. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: ``` Crl.A.No.2858 of 2008 ``` ``` 6 ``` “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 14. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 15. The sample was forwarded to the laboratory on 27.03.2003 but the same reached the laboratory only on 28.03.2003. The Property Clerk of the Court and the police official who delivered the sample in the laboratory were not examined. The omission on the part of the prosecution in examining those ``` Crl.A.No.2858 of 2008 ``` ``` 7 ``` officials leads to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 16. 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. 17. 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. 18. 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. 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 ``` Crl.A.No.2858 of 2008 ``` ``` 8 ``` 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 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)** . 19. In the present case, the prosecution failed to show that the arrack allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner’s Laboratory. 20. Yet another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 28.03.2003, it was subjected to analysis only on 01.03.2004. On the question of delay in the analysis of the sample, in **Krishnadas** ``` Crl.A.No.2858 of 2008 ``` ``` 9 ``` ## **v. State of Kerala** (2019 KHC 191) this Court held thus: “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.” 21. In the instant case, a delay of more than 11 months in analysing the sample has not been explained by the prosecution. 22. 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. 23. 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** ``` Crl.A.No.2858 of 2008 ``` ``` 10 ``` **of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314], **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 24. 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. 25. The conviction and sentence recorded by the trial Court cannot 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 ``` VPK