Nanu s/o Kadugon v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944** **CRL.A NO. 997 OF 2008** **AGAINST THE JUDGMENT IN SC 854/2006 OF ADDITIONAL DISTRICT &** ## **SESSIONS COURT, VADAKARA** ## **APPELLANT/ACCUSED:** NANU,S/O KADUGON, NELLIYULLAKUNIYIL EDACHERY AMSOM, VATAKARA TALUK BY ADVS. SRI.C.R.SIVAKUMAR SMT.MINI.M.NAIR SMT.G.VIDYA ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA, THE EXCISE PREVENTIVE OFFICER, NADAPURAM EXCISE RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV SMT. REKHA.S (SR.PPUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.997 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.997 of 2008 --------------------------------------Dated this the 2[nd] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 16.05.2008, passed by the Additional District and Sessions Court, Vatakara in S.C.No.854/2006, the appellant/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 one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 28.05.2004 at 5.45 p.m., the accused was found in possession of 8 litres of country made liquor near Kunnuchirakkal bridge in Vatakara Taluk 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 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.997 of 2008 3 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 7 and proved Exts.P1 to P7 and MO1. 5. After the closure of the prosecution evidence, 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 convicted the appellant/accused for the aforesaid offence. 6. Heard Smt. Mini.M.Nair, 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 Crl.A No.997 of 2008 4 judgment of conviction and sentence on the ground that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate her contentions: - (i) The delay in the production of the properties, including the sample, has not been satisfactorily explained. - (ii) The prosecution failed to produce the specimen of the seal before the Court and forwarded the same to the laboratory. 9. The alleged seizure was effected on 28.05.2004 by the Preventive Officer, Excise Range, Nadapuram (PW1). He produced the properties including the sample before the Excise Inspector, Nadapuram Excise Range (PW3). 10. The properties reached the jurisdictional Court only on 01.06.2004. The explanation offered by PW3 is that he originally produced the sample before the Judicial Magistrate, Perambra and as per the instructions of the Magistrate he produced the Crl.A No.997 of 2008 5 properties, including the sample, before the Judicial Magistrate of First Class, Nadapuram on 01.06.2004. In none of the documents relied on by the prosecution, there is mention of the fact that the properties, including the sample, were produced before the Magistrate Court, Perambra. The defence specifically challenged the version of PW3 that he had produced the sample before the Perambra Court. There was no satisfactory explanation on the part of PW3 regarding this aspect. Therefore, the explanation offered by PW3 regarding the delay in the production of the sample before the Court is not satisfactory. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “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. ” (Emphasis supplied) In Ravis' case (supra) the Division Bench held that production of the Crl.A No.997 of 2008 6 property 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 property. 11. 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 sample could not be ruled out. 12. Exhibit P2 is the seizure mahazar prepared by the detecting officer at the time of seizure. He had drawn sample at the scene of occurrence. He has not given evidence as to the nature of the seal used. Exhibit P2 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. Exhibit P5, the forwarding note/requisition for sending sample, does not contain the seal stated to have been affixed on the bottle containing the sample by the detecting officer against the space meant for it. The seal provided against the space for sample seal is the seal of the Court concerned. PW3 has not produced the specimen of the seal at the time of production of the sample before the Court. There is also no evidence to show that Crl.A No.997 of 2008 7 the specimen of the seal was forwarded to the Chemical Examiner for verification. 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. The sample was received in the Court on 01.06.2004 by the Junior Superintendent of the Court as is evident from Ext.P4. PW8, the property clerk stated that he received the sample. There is no evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P7 Certificate of Chemical Analysis shows that Crl.A No.997 of 2008 8 the sample reached the laboratory on 09.06.2004 through an Excise guard by name K.P.Sankaran. Though the property clerk (PW8) was examined as a witness, he had not given evidence regarding forwarding of the sample to the laboratory. Sri.K.P.Sankaran, the Excise guard had not been examined as a witness. Nonexamination of the Junior Superintendent of the Court and K.P.Sankaran, who delivered the sample to the laboratory, and the lack of evidence regarding the date on which the sample was forwarded to the laboratory are fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. Absolutely, there is no evidence to establish the tamper-proof despatch of the sample to the laboratory. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 16. In the present case, the prosecution failed to prove that the contraband seized at the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Exhibit P7, Certificate of Chemical Analysis has no evidentiary value. 17. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Crl.A No.997 of 2008 9 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. 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 has miserably failed 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. 20. 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. In the result, the Crl.A No.997 of 2008 10 appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS