Mohanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 18[TH] DAY OF JULY 2022 / 27TH ASHADHA, 1944 ``` ``` CRL.A NO. 2626 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 141/2007 OF ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ``` ## **`APPELLANT:`** ``` MOHANAN, S/O RAMAN NAIR, KANDOTH VEETTIL, KURUVATTOOR DESOM, PARAMBIL AMSOM, KOZHIKODE. ``` ## **`BY ADV R.BINDU (SASTHAMANGALAM)`** ## **`RESPONDENT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2626 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 2626 OF 2008** =================== Dated this the 18[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 13.10.2008, passed by the Additional Sessions Court, Vadakara in S.C.No.141/2007, the accused has preferred this appeal. The appellant/accused 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 24.01.2005 at about 3.30 p.m., the appellant/accused was found in possession and transporting 30 bottles of Indian made Foreign Liquor in a bus bearing Registration No. KL.11/N707 at Uralungal amsom, Madappalli desom in violation of the provisions of Abkari Act. ``` CRL.A NO. 2626 OF 2008 ``` ``` 3 ``` 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) 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 55(a) 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 7 and proved Exts.P1 to P9. 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 on both sides, the Trial Court ``` CRL.A NO. 2626 OF 2008 ``` ``` 4 ``` convicted the appellant for the aforesaid offence. 6. Heard Sri. R. Bindu Sasthamangalam, 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 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 eventually subjected to analysis in the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions; a. Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. b. The Detecting Officer has not given evidence as to the nature of the seal used. c. The various officials, who handled the sample ``` CRL.A NO. 2626 OF 2008 ``` ``` 5 ``` during its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected by PW1 on 24.01.2005. He had prepared Ext.P2 mahazar at the time of seizure. Ext.P2 does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW1 has not given evidence as to the nature of the seal used. 10. The sample remained in the custody of the Junior Superintendent of the Court, the property clerk of the Court and the Excise Guard by name Sri. A. Vinod, who delivered the sample to the laboratory. Those witnesses were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The non-examination of those witnesses is fatal to the prosecution as it failed to establish the tamper-proof despatch of the sample to the laboratory. 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 ``` CRL.A NO. 2626 OF 2008 ``` ``` 6 ``` establishes that the very same sample drawn from 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 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 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. Daulat Ram [AIR 1980 SC 1314]** in **Sasidharan** (supra) this Court held that where sample changed several hands before reaching the Chemical Examiner, ``` CRL.A NO. 2626 OF 2008 ``` ``` 7 ``` 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 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]** . 14. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal ``` CRL.A NO. 2626 OF 2008 ``` ``` 8 ``` 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 the instant case, the prosecution failed to show that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P9 Certificate of Chemical Analysis has no evidentiary value to connect the accused with the contraband. 16. 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. 17. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the ``` CRL.A NO. 2626 OF 2008 ``` ``` 9 ``` 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]}. 18. 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. 19. 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 accused is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the appellant/accused as per the directions of this Court shall be disbursed to him. ``` CRL.A NO. 2626 OF 2008 ``` ``` 10 ``` The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU