Nagesh v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944 ## CRL.A NO. 276 OF 2007 AGAINST THE JUDGMENT IN SC 634/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), KASARAGOD ## APPELLANT/ACCUSED: NAGESH, S/O. THIMMAPPA SAFALIA, AVALASAG, BAJANKILA, BAYAR VILLAGE. BY ADV SRI.SOJAN MICHEAL ## RESPONDENT/COMPLAINANT: 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 23.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ...2.. CRL.A NO. 276 OF 2007 ## **JUDGMENT** This appeal is directed against the judgment dated 09.01.2007 in S.C.No.634/2004 on the file of the Additional Sessions Court (Adhoc-I), Kasargod. 2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 55(a) of the Abkari Act. He was sentenced to undergo rigorous imprisonment for a period of 1½ years and to pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 02.01.2002, at about 2.30 a.m., the appellant/accused was found in possession of 60 bottles of Indian Made Foreign Liquor supplied for sale in the State of Karnataka and 200 litres of illicit arrack at Angadimogar, Puthige Village. 4. After completing the investigation, the Kumbala Police submitted final report against the appellant before the Judicial First Class Magistrate Court-I, Kasaragod. The case was committed to the Sessions Court, Kasaragod, from where it was made over to the Trial Court. On the appearance of the ...3.. CRL.A NO. 276 OF 2007 accused, the Court framed charge against him. He pleaded not guilty to the charge. 5. The prosecution examined PWs1 to 6 and proved Exts.P1 to P7 and MOs 1 to 3. 6. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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 as aforesaid. 7. Heard Shri. Sojan Michael, the learned counsel for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the following grounds. ...4.. CRL.A NO. 276 OF 2007 - (i) The prosecution failed to establish the identity of the person who was found in possession of the contraband substance at the place of occurrence. - (ii) The inordinate delay in the production of the samples and other articles before the Court has not been satisfactorily explained by the Prosecution. - (iii) The prosecution failed to establish that the contraband substances seized from the place of occurrence were subjected to analysis in the Chemical Examiner's Laboratory. 9. The case of the prosecution is that on the date of occurrence, the accused was carrying the contraband substance in a car bearing Regn. No.KRR 9257 which hit against a tree standing by the side of the public road and the accused ran away from the scene of occurrence. PW4, the detecting officer and PW3, a police constable who had accompanied him identified the accused in the box. The incident happened at 2.30 am on the date of occurrence. PW4 ...5.. CRL.A NO. 276 OF 2007 admittedly had no previous acquaintance with the accused. PW3 deposed that he had acquaintance with the accused. But, he has not given convincing evidence as to the way in which he got acquainted with the accused. No materials have been produced by the Prosecution to show that PW3 had an opportunity to got acquaintance with the accused. Going by the evidence of the official witnesses, in the midnight they had only fleeting glimpse of the person ran away from the scene. The official witnesses identified the accused in the Court after a long lapse of two years. 10. It is well settled that where a witness identifies an accused who is not known to him in the Court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: **Kanan and others v. State of Kerala** (AIR 1979 SC 1127)], **Jameel v. State of Maharashtra** [AIR 2007 SC 971], **Raja v. State by** ...6.. CRL.A NO. 276 OF 2007 **Inspector of Police** [AIR 2020 (SC) 254], **State (Delhi Administration) v. V.C.Shukla and another** [AIR 1980 (SC) 1382], **Mohd.Abdul Hafeez v. State of AP** [AIR 1983 (SC) 367]. So, on this ground alone the prosecution must fail. 11. The date of occurrence is 02.01.2002. Ext, P5 list of properties shows that the properties, including the sample, were produced before the Court only on 05.01.2022. No satisfactory explanation was offered by the prosecution for the delay in the production of sample and other articles before the Court. 12. 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: 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 Crl.Appeal No.1196 of 2006 7 production of the property.” (Emphasis ...7.. CRL.A NO. 276 OF 2007 ## supplied) In **Ravi's case** (supra) the Division Bench held that production of properties 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 properties. 13. 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. 14. 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. 15. A legal obligation is cast on the prosecution to ...8.. CRL.A NO. 276 OF 2007 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. 16. 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, the prosecution had to necessarily examine the various officials who handled the sample to prove that while in ...9.. CRL.A NO. 276 OF 2007 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]. 17. 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 ...10.. CRL.A NO. 276 OF 2007 in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the court. 18. 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. 19. 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 satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized ...11.. CRL.A NO. 276 OF 2007 eventually reached the Chemical Examiner's laboratory. 20. In the instant case, this Court also noticed the following loopholes in the prosecution evidence. - (i) Ext.P1 seizure Mahasar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (ii) The detecting officer has not given evidence as to the nature and description of the seal used. - (iii) The sample changed several hands before reaching the laboratory. All the officials who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 21. The resultant conclusion is that Ext.P6 Certificate of Chemical Analysis has no evidentiary value to connect the appellant with the offence alleged. ...12.. CRL.A NO. 276 OF 2007 22. 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. 23. 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 offences punishable under Section 55(a) of the Kerala Abkari Act. He is acquitted of the charges. He is set at liberty. The appeal is allowed as above. Sd/- ## **K. BABU, JUDGE** kkj