MANOJ, S/O RAGHAVAN v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 CRL.A NO. 2974 OF 2008** **AGAINST THE ORDER/JUDGMENTCP 18/2007 OF JUDICIAL MAGISTRATE OF** **FIRST CLASS , (MUNSIFF MAGISTRATE COURT) ADIMALI** **SC 507/2007 OF SPECIAL COURT (NDPS ACT CASES), THODUPUZHA** ## **APPELLANT/ACCUSED:** MANOJ,S/O RAGHAVAN, PADIKKAKUDIYIL HOUSE, AKAMANAM KARA, MANNAMKANDAM VILLAGE,, DEVIKULAM TALUK. BY ADV PEEYUS A.KOTTAM ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 2974 of 2008 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.2974 of 2008 --------------------------------------Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 24.11.2008, passed by the Additional Sessions Court for NDPS Act cases, Thodupuzha in Sessions Case No.507/2007, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 3 years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.08.2006 at 3.15 p.m, the appellant/accused was found in possession of 35 litres of illicit arrack and 1000 litres of wash in the forest area near Akamanam in violation of the provisions of the Abkari Act. ## 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) of 3 Crl.A No. 2974 of 2008 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 charges were framed against him for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 3 and proved Exts P1 to P7 and MOs 1 to 7. 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 adduce evidence, if any, he may have in support thereof. DW1 was examined and Exts.D1 to D3 were marked on the side of the defence. The Trial Court, after 4 Crl.A No. 2974 of 2008 hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 8(2) and 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.George Sebastian, 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 grounds. a) The prosecution failed to establish the identity of the person who was allegedly found in possession of the contraband substances at the scene of occurrence. b) The delay in the production of the sample and other articles before the Court has not been satisfactorily explained by the prosecution. c) Prosecution also failed to prove that the wash Crl.A No. 2974 of 2008 5 and arrack allegedly seized form the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. According to the prosecution, on 29.08.2006, the Excise Inspector, Adimali (PW3), on getting reliable information that the accused was engaged in manufacturing arrack in the forest area near Akamanam, proceeded to the place of occurrence. The excise team led by PW3, found the accused carrying a black can. On seeing the excise party, the accused ran away from the scene of occurrence. He could not be arrested. PW3, the detecting officer has not narrated the identifying features of the person allegedly left the place of occurrence on seeing the excise party. Admittedly, PW3 had no previous acquaintance with the accused. He had no opportunity to identify the accused after the incident. According to PW3, he saw the accused from a distance of 20 meters. The independent witnesses examined to prove the incident proper did not support 6 Crl.A No. 2974 of 2008 the prosecution. Going by the evidence of PW3, he had only a fleeting glimpse of the person allegedly ran away from the scene of occurrence. PW3 identified the accused in the Court after a lapse of two years. 9. 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: Kanan 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 Crl.A No. 2974 of 2008 7 ground alone, the prosecution must fail. 10. The resultant conclusion is that the prosecution has not established the identity of the person who was allegedly found in possession of the contraband substances. 11. The learned counsel further contended that the delay in the production of the properties, including the sample, has not been explained by the prosecution. The seizure was effected on 29.08.2006. Ext.P5, property list shows that the properties, including the sample reached the Court only on 31.08.2006. PW3 has not given any satisfactory explanation for the delay in the production of the properties including the sample, before the Court. 12. In **Ravi v. State of Kerala [2011 (3) KHC 121]** on the question of delay in the production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 1.It is not necessary to produce the article seized under S.34 of the Abkari Act before the Crl.A No. 2974 of 2008 8 Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” **In Ravi's case (supra)** the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 13. The sample was received in the Court by the Junior Superintendent. It remained in the custody of the property clerk of the Court. Ext.P7, Certificate of Chemical Analysis shows that the bottles containing the sample were forwarded to the Chemical Examiner's Laboratory as per letter dated 31.08.2006 of the Judicial Magistrate of First Class, Adimali. The Excise Guard by name T.Tytus obtained the samples from Crl.A No. 2974 of 2008 9 the Court and handed over them to the laboratory on 01.09.2006. The Junior Superintendent of the Court, the property clerk of the Court and the Excise Guard concerned were not examined by the prosecution. The omission on the part of the prosecution in not examining the officials who handled the sample during its transit to the laboratory from the Court would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 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 it was the contraband substance allegedly seized from the possession of the accused eventually Crl.A No. 2974 of 2008 10 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 it reaches the laboratory is required to be established by the prosecution. 16. 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, 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 Crl.A No. 2974 of 2008 11 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). 17. In the present case, the prosecution has not established that the contraband substances allegedly seized from the place of occurrence were subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P7, Certificate of Chemical Analysis has no evidentiary value. The prosecution also failed to establish the identity of the person who was found in Crl.A No. 2974 of 2008 12 possession of the properties at the place of occurrence. The necessary conclusion is that the prosecution failed to connect the accused with the contraband substances seized. 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, not guilty of the offences punishable under Sections 8 (2) and 55(g) of the Abkari Act. He is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk