MOHANAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 CRL.A NO. 2079 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 28.08.2008 IN SC 28/2007 OF ``` ``` ADDITIONAL DISTRICT & SESSIONS COURT, VADAKARA ``` ## **`APPELLANT/ACCUSED:`** ``` MOHANAN, S/O RAMAN NAIR, KUNDOTH HOUSE, KURUVATTOOR AMSOM, PARAMBIL DESAM, KOZHIKODE. ``` ``` BY ADV. R.BINDU (SASTHAMANGALAM) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2079 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2079 of 2008 --------------------------------------------- Dated this the 7[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 28.08.2008, passed by the Additional District and Sessions Court, Vadakara in Sessions Case No.28/2007, 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 22.12.2004 at 3.40. p.m., the appellant/accused was found in possession of 9.075 litres of Indian-made Foreign liquor in a bus bearing Registration No.KL-11C-6082 at Azhiyur in violation of the provisions of the Abkari Act. 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 ``` Crl.A.No.2079 of 2008 ``` ``` 3 ``` 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 P11 and MO1. 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri.R.Jayakrishanan, 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 the link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest. It is contended that the prosecution has not succeeded in establishing that the foreign liquor allegedly seized from the ``` Crl.A.No.2079 of 2008 ``` ``` 4 ``` possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. 8. The seizure was effected on 22.12.2004 at about 3.40 p.m., while the accused was allegedly possessing the contraband substance while travelling in a bus bearing Registration No.KL-11C-6082. The accused was produced before the Court on 22.12.2004, along with the contemporaneous documents prepared at the scene of occurrence. Ext.P4 property list shows that the bottles containing the sample were produced before the Court only on 23.12.2004. The prosecution has not offered any explanation for the delay in the production of the sample before the Court. 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 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.” ``` Crl.A.No.2079 of 2008 ``` ``` 5 ``` 9. 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. 10. 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. 11. The learned counsel for the appellant further contended that the prosecution has failed to establish the link evidence to connect the contraband substance with the accused. PW4, the detecting officer deposed that the bottles containing the sample remained in the custody of the Excise Inspector. PW6, the Investigating Officer stated that the articles, including the sample, were in the custody of the Excise Inspector by name Sri.U.Bhaskaran. Sri.U.Bhaskaran was not examined as a witness. Ext.P4 further shows that the Junior Superintendent of the Court received the bottles containing the sample on 23.12.2004. PW7, Property Clerk of the Court had no idea of the custody of the sample retained in the Court. 12. The prosecution has not adduced any evidence as to the name of the officer with whom the sample was forwarded to the ``` Crl.A.No.2079 of 2008 ``` ``` 6 ``` laboratory. Ext.P11, the Certificate of Chemical Analysis shows that the Excise Guard concerned produced the bottles containing the sample in the laboratory on 03.01.2005. It is evident that the sample remained in the custody of Sri.U.Bhaskaran, the Junior Superintendent of the Court and Sri.C.P.Chandran, the Excise Guard who delivered the sample in the laboratory. Those officials were not examined by the prosecution to establish the tamperproof despatch of the sample to the laboratory. 13. 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. 14. 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 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. 15. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , this Court had occasion to elucidate on the legal obligation cast on ``` Crl.A.No.2079 of 2008 ``` ``` 7 ``` 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, 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 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)** . 16. The non-examination of the witnesses who handled the sample during its transit from the place of occurrence to the ``` Crl.A.No.2079 of 2008 ``` ``` 8 ``` laboratory is sufficient to hold that the prosecution failed to rule out the possibility of the sample being changed or tampered with. In the absence of any evidence that the sample reached the laboratory in a tamper-proof condition, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 17. 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. 18. 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]}. 19. 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 ``` Crl.A.No.2079 of 2008 ``` ``` 9 ``` evidence as discussed above. 20. 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