Mani @ Manikandan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.A NO. 1619 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 13.08.2007 IN SC 129/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` MANI @ MANIKANDAN, AGED 32 YEARS, S/O MADHAVAN CHETTY, KARITHILODE VEEDU, KADALADI, MUPPAINAD AMSOM, VADUVANCHAL,, WAYANAD DISTRICT. ``` ``` BY ADV. SMT.CELINE JOSEPH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA..S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1619 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A No. 1619 of 2007 --------------------------------------------- Dated this the 13[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 13.08.2007, passed by the Additional Sessions Court-II(Adhoc), Kalpetta, in Sessions Case No.129 of 2005, the accused has preferred this appeal. The appellant was convicted under Section 58 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 15.08.2003 at 17.20 hours the accused was found in possession of 2 litres of illicit arrack at Muppainadu 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 58 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 the accused charge was framed against him for the offence punishable under Section 58 of the Abkari Act. The accused pleaded not guilty to the ``` Crl.A.No.1619 of 2007 ``` ``` 3 ``` charge and therefore, he came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P7 and MO 1. 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1 Lakh under Section 58 of the Abkari Act. 6. Heard Smt.,Celine Joseph, 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/accused challenged the judgment of conviction and sentence on the following ground:- ``` Crl.A.No.1619 of 2007 ``` ``` 4 ``` The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to the Chemical Examination. 8. The learned counsel for the appellant relied on the following circumstances to substantiate her contentions:- - (1) The specimen of the seal has not been produced before the Court. - (2) The delay in bring the sample to the laboratory after obtaining it from the Court has not been explained. - (3) The delay in the analysis of the sample has also not been explained by the prosecution. 9. The alleged seizure and arrest were effected on 15.08.2008 by the SI of police, Meppadi police station (PW6). The detecting officer had drawn sample in two bottles at the scene of occurrence. He also prepared Ext.P3 seizure mahazar evidencing arrest and seizure. Ext.P3 does not contain the nature and description of seal stated to have been affixed on the bottles containing the sample. PW6 has not given evidence regarding the nature of the seal used at the time of drawing the sample. The ``` Crl.A.No.1619 of 2007 ``` ``` 5 ``` detecting officer has not produced the specimen of the seal at the time of production of the articles including the sample before the Court to ensure the genuineness of the sample produced. Ext.P6, copy of forwarding note does not contain the specimen of the seal affixed on the sample. The name of the officer with whom the sample was forwarded to the laboratory is also silent in Ext.P6. The prosecution has not given evidence as to the date on which the bottles containing the sample were forwarded to the laboratory. Ext.P7 certificate of chemical analysis, shows that the sample was forwarded as per letter datee 20.10.2003 of the Chief Judicial Magistrate, Kalpetta. But the sample reached the laboratory only on 29.10.2003. The custody of the sample during this interregnum has not been explained by the prosecution. The sample remained in the custody of the Property Clerk of the Court, the police officer who received it from the Court, and the police official who delivered the same to the laboratory. Those officials were not examined by the prosecution. The inevitable consequence of this omission on the part of the prosecution is that it failed to establish the tamper proof despatch of the sample to the laboratory. 10. The prosecution also failed to establish that the specimen of the seal was forwarded to the laboratory to facilitate the Chemical Examiner to verify the genuineness of the sample. ``` Crl.A.No.1619 of 2007 ``` ``` 6 ``` 11. 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. 12. 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. 13. 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 (1980 KLT OnLine 1025 (SC) : 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 ``` Crl.A.No.1619 of 2007 ``` ``` 7 ``` on the sample have not been tampered with. In **Sathi v. State of Kerala (2017 (1) KLT SN 6 (C. No. 7) : 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)** . 14. In **Bhaskaran v. State of Kerala (2019 (3) KLT SN 34 (C. No.49) : 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. 15. 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 ``` Crl.A.No.1619 of 2007 ``` ``` 8 ``` 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. 16. In the present case, the prosecution has not succeeded in proving that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P7 certificate of chemical analysis has no evidentiary value. 17. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 29.10.2003 it was subjected to analysis only on 23.09.2004. 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 ``` Crl.A.No.1619 of 2007 ``` ``` 9 ``` ## benefit of which must go to the accused.” 18. In the instant case, the delay more than five months in analysing the sample has not been explained by the prosecution. 19. 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. 20. 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]}. 21. 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. 22. The conviction and sentence recorded by the trial court ``` Crl.A.No.1619 of 2007 ``` ``` 10 ``` cannot be sustained. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK