Lalitha, D/o Chellamma 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 / 12TH SRAVANA, ``` ``` 1944 ``` ## **`CRL.A NO. 1858 OF 2007`** ``` AGAINST THE JUDGMENT DATED 19.09.2007 IN SC 1630/2004 OF ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC)-II, ``` ## **`THIRUVANANTHAPURAM`** ## **`APPELLANT/ACCUSED:`** ``` LALITHA, D/O CHELLAMMA, THOTTUVARAMBIL VEEDU, RISHIMANNGALAM WARD, VANCHIYOOR. ``` ``` BY ADV SRI.SUMAN CHAKRAVARTHY ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ``` ``` ON 03.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1858 of 2007 2 ## **K.BABU, J.** ------------------------------------------- Crl.A No.1858 of 2007 --------------------------------------------- ## Dated this the 3[rd] day of August, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 19.09.2007, passed by the Additional Sessions Court, Fast Track (Adhoc)-II, Thiruvananthapuram in Sessions Case No. 1630/2004, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.07.2002 at 7.20 p.m., the accused was carrying 1 ½ litres of illicit arrack in a plastic bottle in the premises of her residential house bearing No.TC.26/2008 in Krishnamangalam Ward of Vanchiyoor Village 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 Magistrate. The case was committed to the Sessions Court from where it was made over to the trial Court. On the Crl.A.No.1858 of 2007 3 appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P9 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, she was called upon to enter on her defence and adduce evidence, if any, she 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 her thereunder. 6. Heard Sri.Suman Chakravarthy, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challanged by the appellant/accused under the following grounds: Crl.A.No.1858 of 2007 4 (1) The arrest of the accused as alleged is doubtful. (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to chemical examination in the laboratory. 8. The case of the prosecution is that the accused was arrested on 21.07.2002, along with the contraband substance. The arrest of the accused is challenged on the ground that the arrest memo contains the crime number registered against him. While dealing with a similar fact situation this Court in ## **Santhosh v. State of Kerala [2021 (5) KHC 214]** 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.1858 of 2007 5 9. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P8 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 10. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contention that the arrack allegedly recovered from the place of occurrence was subjected to chemical analysis:- (a) The detecting officer has not narrated the nature and description of seal stated to have been affixed on the bottles containing the sample. (b) The specimen of the seal was not produced before the Court. (c) The forwarding note/requisition for sending the sample was not produced and marked. 11. Ext.P5, seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer (PW7) has not given evidence as to the nature of seal used. The forwarding note/requisition for sending sample was not produced and marked . There is nothing to show that the specimen of the seal was forwarded to the Chemical Crl.A.No.1858 of 2007 6 Examiner’s Laboratory to ascertain the genuineness of the sample analysed. 12. PW1, the Property Clerk of the Court stated that the she had also drawn sample from the bulk quantity of the arrack produced before the Court and forwarded same to the Chemical Examiner’s Laboratory. 13. In **Baburaj v. State of Kerala [2021 (6) KLT 416],** this Court held that the procedure of drawing sample from the contraband substance by an official of the Court has no sanction of law, and therefore, the Certificate of Chemical Analysis based on the sample so drawn has no credibility. 14. 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. 15. 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. Crl.A.No.1858 of 2007 7 16. 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. 17. 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. 18. 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. Crl.A.No.1858 of 2007 8 19. In the present case, as the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to chemical examination in the laboratory, Ext.P4, Certificate of Chemical Analysis has no evidentiary value. 20. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 28.08.2002. it was subjected to analysis only on 02.06.2003. On the question of delay in the analysis of the sample, in **Krishnadas 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, the delay in analysing the sample has not been explained by the prosecution. Crl.A.No.1858 of 2007 9 22. The materials placed before the Court would reveal that the sample changed several hands during its transit from the place of occurrence to the laboratory through the Court. None of the officials who handled the sample during different stages were examined by the prosecution. The omission on the part of the prosecution in examining those officials, who handled the sample, leads to the inference that the prosecution failed to rule out the possibility of the sample being changed or tampered with. In the absence of any convincing evidence that the contraband substance allegedly recovered from the scene of occurrence eventually reached the hands of the chemical analyst, Ext.P4, Certificate of Chemical Analysis, has no evidentiary value. 23. 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. 24. 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 Crl.A.No.1858 of 2007 10 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]}. 25. 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. 26. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. She is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK