Mohanan S/O Balan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 25[TH] DAY OF JULY 2022 / 3RD SRAVANA, 1944 ``` ``` CRL.A NO. 1434 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 88/2004 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), KALPETTA ``` ## **`APPELLANT/ACCUSED NO. 1:`** ``` MOHANAN S/O BALAN, AGED 43 YEARS VELLAMUNDA. ``` ``` BY ADVS. SRI.GRASHIOUS KURIAKOSE SRI.GEORGE MATHEWS ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1434 OF 2007 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 1434 OF 2007** =================== Dated this the 25[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 15.05.2007, in S.C.No.88/2004 on the file of the Additional Sessions Judge, (Adhoc)-I, Kalpetta, accused No. 1 has preferred this appeal. The appellant/accused No. 1 was convicted under Section 55(a) 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 14.11.2002 at about 8.15 p.m., the appellant/ accused No. 1 was found in possession of about 2 litres of country made arrack kept for the purpose of sale along with accused No. 2. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55 (i) of the Abkari ``` CRL.A NO. 1434 OF 2007 ``` ``` 3 ``` 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 them for the offences punishable under Sections 55(a) and 55 (i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P8 and Mos 1 and 2. 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 for the aforesaid offence. Accused ``` CRL.A NO. 1434 OF 2007 ``` ``` 4 ``` No. 2 was acquitted. 6. Heard the learned counsel for the appellant/ accused No. 1 and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 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 was subjected to analysis in the Chemical Examination’s Laboratory. 8. The learned counsel for the appellant/accused No. 1 relied on the following circumstances to substantiate his contentions; a. There is an unexplained delay of 7 days in producing the properties including the sample before the Court. b. The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner's Laboratory to ensure the genuineness of the ``` CRL.A NO. 1434 OF 2007 ``` ``` 5 ``` sample. 9. The alleged seizure was on 14.11.2002. The arrest and seizure were effected by the Sub Inspector of Police, Vellamunda. Ext.P5 list of properties shows that the properties including the sample were produced before the Court only on 21.11.2002. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 10. In **Ravi v. State of Kerala & another** [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 Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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. ” (Emphasis supplied) 11. 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 ``` CRL.A NO. 1434 OF 2007 ``` ``` 6 ``` 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. Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. 14. The Detecting Officer has not given evidence as to the nature of the seal used. 15. Ext.P6 forwarding note/requisition for sending sample would show that the specimen of the seal was not incorporated therein. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner for verification to ascertain the genuineness of the sample produced for analysis. 16. Ext.P7 Certificate of Chemical Analysis shows ``` CRL.A NO. 1434 OF 2007 ``` ``` 7 ``` that the bottles containing the sample were forwarded to the Laboratory as per letter dated 21.11.2002 of the Judicial First Class Magistrate’s Court – I, Manathavady. The sample reached the Laboratory only on 25.11.2002 as is evident from Ext. P7. The prosecution has not given any explanation as to the delay in bringing the sample to the Laboratory after the same was obtained from the Court. 17. The Police Official who delivered the sample was not examined as a witness. The Property Clerk was also not examined. The non examination of the Property Clerk of the Court and the Police Official who delivered the sample in the laboratory would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 18. 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 ``` CRL.A NO. 1434 OF 2007 ``` ``` 8 ``` Examiner's laboratory. 19. 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 tamperproof 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. 20. 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 Rajastan 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 ``` CRL.A NO. 1434 OF 2007 ``` ``` 9 ``` 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 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 (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . 21. 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 ``` CRL.A NO. 1434 OF 2007 ``` ``` 10 ``` 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. 22. In **Rajamma v. State of Kerala [2014 (1) KLT 506]** , this Court held that if the specimen of the seal sample is affixed not on the produced bottle before containing the the and court 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. 23. In the instant case the prosecution failed to show that the contraband substance seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value to connect the accused with the contraband seized. 24. The resultant conclusion is that the prosecution has not succeeded in establishing the link connecting the ``` CRL.A NO. 1434 OF 2007 ``` ``` 11 ``` accused with the contraband seized. Therefore, the conviction and sentence passed against the accused cannot be sustained. The appellant/accused No.1 is, therefore, not guilty of the offence alleged. The conviction and sentence passed against the accused shall stands set aside. He is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per directions of this Court shall be disbursed to the appellant/ accused No.1. ## The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU