Majeed, S/o Hydrose Kunju v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 24[TH] DAY OF JUNE 2022 / 3RD ASHADHA, 1944** ## **CRL.A NO. 2012 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 1363/2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM** ## **APPELLANT/ACCUSED NO.1:** MAJEED,S/O HYDROSE KUNJU, CHIRAYIL VEEDU, NJARAKKAL CHERRY, THRIKKADAVOOR, KOLLAM TALUK BY ADV M.T.SURESHKUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY ON 24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2012 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2012 of 2008 --------------------------------------Dated this the 24[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 30.05.2008, passed by the Additional District and Sessions Court, (Adhoc-II), Kollam in S.C.No.1363/2005, accused No.1 has preferred this appeal. The appellant/accused No.1 was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 30 days and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 22.12.2002 at 5.30 p.m, the appellant/accused No.1 and the other accused were found in possession of 30 litres of spirit and 7 plastic packets, each containing 150 ml of arrack on the eastern side of Ambedkar Cooperative Spinning Mill at Anchalummodu junction, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant and the other accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act Crl.A No.2012 of 2008 3 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 the accused, charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MOs 1 to 3. 5. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused No.1 for the aforesaid offence. Accused No.2 was acquitted. 6. Heard Sri. M.T.Sureshkumar, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.2012 of 2008 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 substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel 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 bottles containing the sample. - (ii) The detecting officer has not given evidence as to the nature and description of the seal used. - (iii) No specimen seal was produced before the Court - and forwarded to the Chemical Examiner's laboratory. - (iv) The officials who handled the sample during its transit from the Court to the laboratory were not examined. 8. The alleged arrest and seizure were effected on 22.12.2002 - by the Excise Circle Inspector, Kollam (PW2). He had drawn samples in two bottles at the scene of occurrence. He has not 5 Crl.A No.2012 of 2008 narrated the nature and description of the seal affixed on the samples in Ext.P1 seizure mahazar. The detecting officer has also not given evidence as to the nature and description of the seal used. The articles, including the samples, were produced before the Court on 23.12.2002. At the time of production of the properties, including the samples, no specimen seal was produced to enable the official concerned of the Court to ascertain the genuineness of the samples produced. There is also no evidence to show that the specimen seal was forwarded to the Chemical Examiner's laboratory. Exhibit P6, the copy of the forwarding note/requisition for sending samples, does not contain the specimen of the seal used. 9. The samples remained in the custody of the property clerk of the Court till 06.01.2003. On 08.01.2003, the samples were forwarded to the Chemical Examiner's Laboratory, which is evident from Ext.P7 Certificate of Chemical Analysis. Thus, the bottles containing the samples reached the laboratory only on 08.01.2003. Sri.V.Sasikumar, the Excise Guard delivered the samples to the laboratory. The prosecution has not explained the custody of the samples during the period from 06.01.2003 to 08.01.2003. The Crl.A No.2012 of 2008 6 property clerk of the Court and Sri.V.Sasikumar, the Excise Guard, were not examined by the prosecution. 10. 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. 11. 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 it 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 the Chemical Examiner in a tamper-proof condition. Relying on State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (supra) this Court held Crl.A No.2012 of 2008 7 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 reemphasized 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's case (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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 13. In Bhaskaran K. v. State of Kerala and another (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 Crl.A No.2012 of 2008 8 the Court to satisfy the genuineness of the sample produced in the Court. 14. 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. 15. The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 16. Yet another aspect that requires consideration is the delay in the analysis of the samples in the Chemical Examiner's Laboratory. Though the samples reached the laboratory on 08.01.2003, it was subjected to analysis only on 22.11.2003. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received Crl.A No.2012 of 2008 9 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.” In the instant case, the delay of about 10 months in the analysis of the samples has not been explained by the prosecution. 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 the contraband substance cannot be conclusive proof by itself and that 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 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]}. Crl.A No.2012 of 2008 10 19. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the samples analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. 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. In the result, the appellant/accused No.1 is acquitted of the offence alleged. He is set at liberty. 21. The amount deposited by the appellant towards fine shall be disbursed to him forthwith. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS