Lince v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 CRL.A NO. 2191 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 498/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY ``` ## **`APPELLANT/ACCUSED:`** ``` LINCE, S/O CHACKOCHAN, AGED 27 YEARS EDAKAROTTU HOUSE, CHITTARIKKAL AMSOM, MALLUKUNNU,, EAST ELARI, KASARAGOD DISTRICT. BY ADV TITUS MANI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERLA,, ERNAKULAM. ``` ``` BY SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2191 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 16.09.2008, passed by the Sessions Court, Thalassery in Sessions Case No.498/2006, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 23.09.2005 at 1.30 pm, the accused was found in possession of 12 bottles each containing 1.5 litres of Indian Made Foreign Liquor at Thiruvanangad near Thalassery bus stand 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 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 3 and proved Exts.P1 to P9. 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. 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 to adduce evidence, if any, he may have in support thereof. DW1 was examined 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 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** imprisonment for a term of three years and to pay a fine of Rs.1 Lakh under Section 55(a) of the Abkari Act. 6. Heard Sri.Titus Mani, 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:- - (i) Arrest of the accused from the place of occurrence as alleged is doubtful in view of the presence of the crime No. in Ext.P2 arrest memo. - (ii) The prosecution failed to establish the tamperproof despatch of the sample to the laboratory from the Court. 8. The alleged seizure was effected on 23.09.2005. PW1, the Sub Inspector of Police, Thalassery, who was on patrol duty, found the accused at the place of occurrence ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** in possession of contraband substance. The learned counsel for the appellant/accused disputed the arrest of accused relying on the presence of crime number in Ext.P2 arrest memo. Ext.P2 contains the number of crime registered against the accused. 9. This Court in **Santhosh v. State of Kerala** [2021 (5) KHC 214] had an opportunity consider a similar fact situation. In **Santhosh** (supra) 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 ``` CRL.A NO. 2191 OF 2008 ``` ..6.. 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(3) KHC 715)].” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. The detecting officer, PW1, has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. He has not given evidence as to the nature and description of the seal used. The sample was produced ``` CRL.A NO. 2191 OF 2008 ``` ..7.. before the Court on 24.09.2005. The Junior Superintendent of the Court received the sample. The sample then remained in the custody of the property clerk of the court. There is nothing on record to show the name of the police official with whom the sample was forwarded to the laboratory. Police Constable No.3984 delivered the sample in the laboratory on 19.10.2005. The sample remained in the custody of the Junior Superintendent of the court, property clerk of the Court, the police official who received the same from the Court and police official who delivered the same in the laboratory. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 12. 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 ``` CRL.A NO. 2191 OF 2008 ``` ..8.. of occurrence was the sample tested in the Chemical Examiner's laboratory. 13. 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. 14. 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 tamperproof 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, ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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] **.** 15. In **Bhaskaran v. State of Kerala** (2020 KHC ``` CRL.A NO. 2191 OF 2008 ``` ..10.. 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. 16. The prosecution has not succeeded in proving that the sample drawn at the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. Resultantly, Ext.P8 certificate of chemical analysis has no evidentiary value. 17. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 18. 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 ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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. 19. 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 found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, ## (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charge ; ``` CRL.A NO. 2191 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj