Lalithakumari v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 5[TH] DAY OF JULY 2022 / 14TH ASHADHA, 1944** **CRL.A NO. 2859 OF 2008** **SC 1742/2006 OF ADDITIONAL SESSIONS COURT (ADHOC), FAST TRACK-I,** **TRIVANDRUM** **CP 9/2006 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE ,TRIVANDRUM** ## **APPELLANT/ACCUSED** LALITHAKUMARI,D/O CHELLAMMA THOTTUVARAMBIL VEEDU, TC 26/08, PATTOOR JN, RISHIMANGALAM WARD, VANCHIYOOR. BY ADV SUMAN CHAKRAVARTHY ## **RESPONDENT/COMPLAINANT** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY SR PP SMT.REKHA S THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A.No.2859/2008 2 K.BABU, J. -----------------Crl.A.No.2859 of 2008 ----------------------Dated : 5[th] July, 2022 ## JUDGMENT 1. The accused in Sessions Case No.1742/2006 on the file of the Additional Sessions Court (Fast Track) (Adhoc No.1), Thiruvananthapuram is the appellant. The appellant/accused was convicted for the offence under Section 8(2) of the Abkari Act and sentenced to simple imprisonment for a period of one year and pay a fine of Rs.1,00,000/-. 2. The prosecution case is that on 29.9.2004 at 7.30 pm, the appellant/accused was found in possession of one litre of illicit arrack in MO1 bottle near Pattoor bridge in Pattoor-Pettah 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 Magistrate. The case was committed to the Sessions Court from where it was Crl.A.No.2859/2008 3 made over to the trial Court. On the 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 PWs1 to 5 and proved Exts.P1 to P7 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, the 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. Ext.D1 was marked on the side of the defence. 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 and Smt. Rekha S. the Crl.A.No.2859/2008 4 learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the following grounds: - (i) The prosecution failed to establish the identity of the person who was carrying the contraband at the scene of occurrence. - (ii) The prosecution failed to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure was on 29.9.2004. PW2, the Preventive Officer, Excise Range Office, Thiruvananthapuram effected the seizure. According to PW2, at 7.30 pm on the date of occurrence, the accused was found in possession of a bottle containing one litre of arrack. PW2 stated that he seized the bottle from the possession of the accused as per Ext.P1 mahazar. The accused could not be arrested as the incident was in the night and no woman Police Constable was available, PW2 added. Crl.A.No.2859/2008 5 9. The independent witnesses examined to prove the incident did not support the prosecution case. The prosecution sought to establish the identity of the accused relying on the oral evidence of PW2 and PW3. PWs2 and 3 have no case that they had any previous acquaintance with the accused. The accused was arrested by PW4 two months after the incident. The witness who identified the accused in the box had no opportunity to see the accused after the incident. They identified the accused in the Court after a long lapse of four years. No test identification parade was conducted. 10. It is well settled that where a witness identifies an accused who is not known to him, in the Court for the first time, his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation, it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court (vide : **Kannan** Crl.A.No.2859/2008 6 **and others v. State of Kerala (AIR 1979 SC 1127], Jameel v. State of Maharashtra (AIR 2007 SC 971), Raja v. State by Inspector of Police (AIR 2020 (SC) 254), State (Delhi Administration) v. V.C.Shukla and another (AIR 1980 (SC) 1382), Mohd.Abdul Hafeez** - **v. State of AP (AIR 1983 (SC) 367)** . So, on this ground alone, the prosecution must fail. 11. The learned counsel for the appellant further contended that the prosecution has not succeeded in proving that the arrack allegedly seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to substantiate his contentions. - (a) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The detecting officer has not given evidence as to the nature and description of the seal used. - (c) The specimen seal was not produced before the Court along with the sample and forwarded to the Chemical Examiner's Laboratory. Crl.A.No.2859/2008 7 12. Ext.P1 seizure mahazar does not contain the nature and description of the seal affixed on the bottle containing the sample. PW2 has not given any evidence regarding the nature of the seal affixed on the bottle containing the sample. Ext.P4 is the copy of the forwarding note/requisition for sending the sample. Ext.P4 does not contain the specimen of the seal affixed on the bottle containing the sample. Therefore, the prosecution failed to show that the specimen of the seal was forwarded to the Chemical Examiner for facilitating him to verify the genuineness of the sample produced for analysis. In Ext.P4, the name of the Officer, with whom the sample was forwarded to the Chemical Examiner's Laboratory, was not mentioned. The date on which the sample was sent to the Chemical Examiner's Laboratory was also not evident from Ext.P4. The sample remained in the custody of the property clerk of the Court till it was despatched to the Chemical Examiner. An Excise Guard by name Anil Kumar delivered the sample to the Laboratary on 8.10.2004, as is evident from Ext.P5. The Crl.A.No.2859/2008 8 property clerk of the Court and the Excise Guard, who delivered the sample in the Laboratory, were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 13. 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. 14. 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 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. 15. In **Sasidharan v. State of Kerala [2007 (1) KLT** Crl.A.No.2859/2008 9 **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 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 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 Crl.A.No.2859/2008 10 - 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].** 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. Crl.A.No.2859/2008 11 18. In the instant case, since the prosecution has not succeeded in establishing that the very same sample drawn at the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P5 Certificate of analysis has no evidentiary value. The prosecution has also not proved the identity of the person who was carrying the liquor at the scene of occurrence. Therefore, the conviction and sentence passed against the appellant/accused cannot be sustained. 19. In the result, the appellant/accused is acquitted of the offence alleged. She is set at liberty. Any amount deposited by the appellant, as per the directions of this Court, shall be disbursed to her forthwith. Appeal is allowed. Sd/- **K.BABU, Judge** Mrcs