M.K. Abdullakutty v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944 CRL.A NO. 1035 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 24.04.2007 IN SC 39/2005 OF ADDITIONAL SESSIONS COURT (ADHOC-I), THALASSERY CP 37/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,MATTANNUR APPELLANT/ACCUSED: ``` ``` M.K.ABDULLAKUTTY, AGED 54 YEARS, S/O MAMMUHAJI, KUZHAKKUNNU AMSOM DESOM, PALAPUZHA. ``` ``` BY ADV SRI.B.N.SHIVSANKAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REP. BY S.I. OF POLICE, IRITTY POLICE STATION,, IRITTY, KANNUR., REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1035 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1035 of 2007 --------------------------------------------- Dated this the 20[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 24.04.2007, passed by the Additional Sessions Court (Adhoc-I), Thalassery in Sessions Case No.39/2005, accused No.2 has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.04.2001 at 12 O’clock in the night, the appellant and the other accused were found transporting 818 packets, each containing 100 ml of arrack in an autorickshaw bearing Registration No.KL-13E-4686 and in a Maruthi Van bearing Registration No.KA-01-M-4612. 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 made over to the trial Court. On the appearance of the accused ``` Crl.A.No.1035 of 2007 ``` ``` 3 ``` 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 and 7 and proved Exts. 1 to 10 and MOs 1 to 5. 5. After the closure of the evidence on behalf of the prosecution, 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. 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 were convicted thereunder. 6. Heard Sri.B.N.Shiva Shanker, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The appellant challenged the judgment of conviction and sentence on the ground that 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. ``` Crl.A.No.1035 of 2007 ``` ``` 4 ``` 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: (1) The delay in the production of the sample has not been explained. (2) The prosecution failed to establish the genuineness of the articles including the sample produced before the Court. (3) The prosecution has not succeeded in proving the tamper-proof despatch of the sample from the Court to the laboratory. 9. The alleged seizure was effected on 29.04.2001 by the Additional Sub Inspector of Police, Iritty Police Station. 10. PW3, the detecting officer gave evidence that he produced the articles including the sample before the Court only on 04.05.2001. He has not offered any explanation for the delay in the production of the sample. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of ``` Crl.A.No.1035 of 2007 ``` ``` 5 ``` 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 explanation for the delay when there is delayed production of the property. 12. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 13. PW3 had drawn sample from the contraband substance seized from the place of occurrence. Ext.P1, seizure mahazar prepared to evidence seizure does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW3 has not given evidence as to the nature of the seal used. 14. The prosecution has not given evidence as to the date on which the bottle containing the sample was forwarded to the ``` Crl.A.No.1035 of 2007 ``` ``` 6 ``` Chemical Examiner's Laboratory. Ext.P10 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 25.06.2001 of the Judicial First Class Magistrate, Mattannur. It further shows that the sample reached the laboratory only on 08.08.2001. In the absence of any evidence as to the date on which the sample was forwarded to the laboratory, the necessary inference is that the sample was forwarded from the Court on 25.06.2001. There is no explanation as to the custody of the sample during its interregnum from 25.06.2001 to 08.08.2001. The sample was delivered to the laboratory by a Police Constable No.4229. None of those officials who handled the sample were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 15. 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. 16. 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 ``` Crl.A.No.1035 of 2007 ``` ``` 7 ``` 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. 17. 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 (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 presumption under S. 114(e) of the ``` Crl.A.No.1035 of 2007 ``` ``` 8 ``` 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)** . 18. 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. 19. Yet another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 08.08.2001, it was subjected to analysis only on 06.03.2003. 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.1035 of 2007 ``` ``` 9 ``` benefit of which must go to the accused.” 20. In the instant case, the delay more than 1 ½ years in analysing the sample has not been explained by the prosecution. 21. 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. 22. 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]}. 23. 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. ``` Crl.A.No.1035 of 2007 ``` ``` 10 ``` 24. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **`K.BABU JUDGE`** VPK