Mohanan @ Maillappara Mohanan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** ## **CRL.A NO. 2224 OF 2008** **AGAINST THE JUDGMENT IN SC 727/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC) FAST TRACK-III, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** MOHANAN @ MAILLAPPARA MOHANAN, S/O. DAMODARAN, PULINILKUNNATHIL VEEDU, METHANAM, THANNITHODU.P.O,PATHANAMTHITTA. BY ADV C.S.MANILAL ## **RESPONDENT/RESPONDENT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2224 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.2224 of 2008 --------------------------------------Dated this the 24[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 28.08.2008, passed by the Additional District and Sessions Judge (Adhoc), Fast Track Court-III, Pathanamthitta in S.C.No.727/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 1 ½ years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 12.07.2004 at 5.40 p.m, the accused was found in possession of 4 litres of arrack and a glass tumbler on the southern courtyard of his residence at Mekkannam in Thannithodu Village. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Pathanamthitta. The case was committed to the Crl.A No.2224 of 2008 3 Sessions Court, Pathanamthitta 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 8(2) 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 5 and proved Exts.P1 to P7 and MOs 1 and 2. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed from both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. C.S.Manilal, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. Crl.A No.2224 of 2008 4 7. The learned counsel for the appellant/accused contended that the prosecution failed to establish the link evidence to ensure that the contraband article allegedly seized from the place of occurrence was actually subjected to analysis in the Chemical Examiner's laboratory. 8. The learned counsel for the appellant relied on the following circumstances to establish his contentions: - (a) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample. - (b) No specimen seal was produced before the Court by the detecting officer to ensure the genuineness of the sample. - (c) No forwarding note was prepared and forwarded to the Chemical Examiner's laboratory so as to ascertain that the contraband substance seized from - the place of occurrence reached the Chemical Examiner's laboratory in a tamper-proof condition. 9. The offence was detected by the Sub Inspector of Police, 5 Crl.A No.2224 of 2008 Thannithodu (PW2). On 12.07.2004 at 5.40 p.m PW2 was on patrol duty. On getting information that the accused had kept illicit arrack at his residence, the Police team led by PW2 proceeded to there. The Police team headed by PW2 found the accused in possession of 4 litres of arrack in a black jerry can. PW4 conducted the investigation and submitted final report. 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 the contraband reaches the laboratory is required to be established by the prosecution. 12. In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this 6 Crl.A No.2224 of 2008 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 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 7 Crl.A No.2224 of 2008 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 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. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no Crl.A No.2224 of 2008 8 satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory {Vide: Baburaj v. State of Kerala [2021 (6) KLT 416]}. 16. This Court noticed the following loopholes in the prosecution evidence: - (a) Exhibit P1, seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample. - (b) The detecting officer has not given evidence as to the nature and description of the seal used at the time of sampling. - (c) The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner's laboratory. - (d) No forwarding note was produced and marked so as to ascertain that the Chemical Examiner could ensure the genuineness of the sample. - (e) The officials, who handled the sample during its Crl.A No.2224 of 2008 9 transit from the place of occurrence to the laboratory through the Court, were not examined to rule out the possibility of the sample being changed or tampered with. 17. When the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory, Ext.P6 Chemical Analysis Report has no evidentiary value. 18. 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. 19. 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 Crl.A No.2224 of 2008 10 ## (1) KHC 275]}. 20. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. 21. 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 offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS