Omana Valiyathhekkethil Veedu v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` TUESDAY, THE 27[TH] DAY OF FEBRUARY 2024 / 8TH PHALGUNA, 1945 CRL.A NO. 1281 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT SC 251/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), PATHANAMTHITTA ``` ## **`APPELLANT:`** ``` OMANA VALIYATHEKKETHIL VEEDU, AMBALATHUMPADU,, MUTTATHUKONAM MURI, CHENNERKKARA VILLAGE,, PATHANAMHTHITTA DIST. BY ADV SRI.AJITH MURALI ``` ## **`RESPONDENT:`** ``` STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ## **`G SUDHEER,PP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1281 OF 2009 ``` ``` 2 ``` **==> picture [80 x 14] intentionally omitted <==** -------------------------------------- ## CRL.A.No.1281 of 2009 --------------------------------------Dated this the 27[th] day of February, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 12.06.2009, passed by the Additional District and Sessions Court, (Adhoc) Fast Track Court-I, Pathanamthitta, in Sessions Case No.251/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 06.09.2003, at 9.pm the appellant was found in possession of 750 ml diluted spirit for sale in a bottle, at Ambalathumpadu, 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, ``` CRL.A NO. 1281 OF 2009 ``` ``` 3 ``` from where it was made over to the trial court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the trial court for the aforesaid offence. 4. The prosecution examined PWs.1 to 4 and proved Exts.P1 to P9 and MO.I. 5. After the closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. On the side of defence, DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri.Ajith Murali, the learned counsel appearing for the appellant/ accused and Sri.G.Sudheer, the learned ``` CRL.A NO. 1281 OF 2009 ``` ``` 4 ``` Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- i) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. ii) The specimen of the seal was not produced before the Court at the time of production of the properties including the sample. iii) Various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. iv) The arrest of the accused is doubtful ``` CRL.A NO. 1281 OF 2009 ``` ``` 5 ``` 9. The alleged seizure was effected on 06.09.2003. The detecting officer has prepared Exhibit P1 seizure mahazar at the scene of occurrence. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has also not given evidence as to the specific nature of the seal used by him. There is nothing to show that the specimen of the seal was forwarded to the laboratory to ensure the genuineness of the sample produced for examination. 10. 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. 11. 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 ``` CRL.A NO. 1281 OF 2009 ``` ``` 6 ``` 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. 12. The properties including the sample were produced before the court on 07.09.2003. It remained in the custody of the property clerk till 17.09.2003. The sample was forwarded to the laboratory as per letter dated 17.09.2003 of the Judicial First Class Court-I, Pathanamthitta. It reached the Chemical Examiner's Laboratory only on 19.09.2003 through a Police Constable No.1698. The property clerk and the Police Officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution. 13. 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 ``` CRL.A NO. 1281 OF 2009 ``` ``` 7 ``` occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 14. 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 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 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 reemphasized 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 ``` CRL.A NO. 1281 OF 2009 ``` ``` 8 ``` 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] . 15. The learned counsel for the accused disputes the arrest of the accused. The case of the prosecution is that the accused was arrested at the scene of occurrence along with the contraband substance. Exhibit P2 is the arrest memo prepared by the detecting officer at the place of occurrence. Exhibit P2 arrest memo contains the number of the crime registered against the appellant. 16. This Court in Santhosh v. State of Kerala [2021 (5) ## KHC214] , held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the ``` CRL.A NO. 1281 OF 2009 ``` ``` 9 ``` registration of the first information report; then there could not be the crime number in the arrest memo. This creates doubts about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See:Karunakar Bindhani v.State of Kerala (2016 KHC 758 : 2017 (1) KLD 48) and Rafeeque v.Sub Inspector of Police, Kunnmkulam Police Station and another (2020 (4) KLT 188 =2020 (3) KHC 715)].” 17. In the present case, the prosecution failed to establish that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 18. 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. 19. 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** ``` CRL.A NO. 1281 OF 2009 ``` ``` 10 ``` ## **1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}.** 20. 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. 21. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused acquitted of the offence alleged. She is set at liberty. The appeal is allowed as above. **Sd/K.BABU, JUDGE** saap