Ouseph v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944** **CRL.A NO. 2547 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 379/2007 OF ADDITIONAL DISTRICT** **COURT(ADHOC II), THRISSUR** ## **APPELLANT/SOLE ACCUSED:** OUSEPH,S/O DEVASSY, KANNAMPUZHA HOUSE KORATTY THEKKUMURY VILLAGE,PALAPPILLY, THENGUCHIRA DESOM. BY ADV G.SREEKUMAR (CHELUR) ## **RESPONDENT/STATE OF KERALA:** THE STATE OF KERALA, REP.BY THE EXCISE INSPECTOR, CHALAKUDY RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. BY ADV SMT. REKHA S. -SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2547 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2547 of 2008 --------------------------------------Dated this the 22[nd] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 14.10.2008, passed by the Additional Sessions Court, Fast Track Court-II (Adhoc), Thrissur in S.C.No.379/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 04.02.2005 at 7.00 p.m., the appellant/accused was found in possession of 3½ litres of arrack on the Chalakudy-Palappilly road, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant 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 made over to the Trial Court. On the appearance of the accused, Crl.A No.2547 of 2008 3 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 6 and proved Exts.P1 to P12 and MO1. 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 convicted the appellant for the aforesaid offence. 6. Heard Sri. G.Sreekumar, 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 Crl.A No.2547 of 2008 4 allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) The prosecution could not ascertain the name of the official with whom the properties, including the sample, were forwarded to the Court on 05.02.2005. - (ii) Exhibit P3, the copy of the forwarding note/requisition for sending sample, does not contain the name of the official with whom the sample was forwarded to the laboratory from the Court. The learned Magistrate who countersigned Ext.P3 omitted to mention the date on which he made his initial. - (iii) The property clerk of the Court and the Excise Guard who delivered the sample to the Chemical Examiner's laboratory were not examined by the prosecution. 8. The alleged seizure and arrest were effected by PW2, the Excise Preventive officer, Excise Range office, Chalakkudy. PW2 produced the accused and the contraband substance recovered Crl.A No.2547 of 2008 5 from his possession, including the sample, before the Excise Inspector, Chalakkudy Range (PW1). Though PW1 received the properties, including the sample, he prepared Ext.P2 property list only on 05.02.2005. While examined in cross, PW1 deposed that he was not aware of the official with whom the properties, including the sample, were forwarded to the Court. 9. Exhibit P2 list of properties shows that the sample was received in the Court by the Junior Superintendent of the Court. The sample remained in the custody of the property clerk till 17.02.2005. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The prosecution also has not given evidence as to the name of the official with whom the sample was forwarded to the laboratory. Exhibit P3 is the copy of the forwarding note. The space meant for mentioning the name of the Excise Guard with whom the sample was forwarded to the laboratory remained vacant in Ext.P3. 10. Though the learned Magistrate countersigned in Ext.P3, he had omitted to put the date on which he made his initial. Therefore, there is no convincing evidence as to the person who received the sample from the Court. While dealing with a similar fact situation, Crl.A No.2547 of 2008 6 ## this Court in Kumaran v. State of Kerala [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard - concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamperproof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be Crl.A No.2547 of 2008 7 ## sustained.” 11. In the present case, the official who handled the sample in the Court and the Excise official who handed over the sample to the laboratory were not examined. It has come out in evidence that the sample remained in the custody of the Excise official, the name of whom could not be ascertained by the prosecution, who brought the sample from the Excise Range Office to the Court. The sample also remained in the custody of the Junior Superintendent of the Court as is evident from Ext.P2. It also remained in the custody of the property clerk. The sample was delivered to the laboratory by Sri.Kunju Mohammed, an Excise guard. Those officials were not examined by the prosecution. The omission on the part of the prosecution in not examining the officials who handled the sample during its transit from the Excise Range Office to the laboratory through the Court is fatal as it failed to rule out the possibility of the sample being changed or tampered with. Resultantly, the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. 12. Exhibit P3 , the copy of the forwarding note, further shows that the space meant for incorporating the specimen seal remained Crl.A No.2547 of 2008 8 vacant. There is no other material to show that the specimen of the seal was forwarded to the laboratory. Therefore, it is to be inferred that the specimen of the seal was not forwarded to the Chemical Examiner to ascertain the genuineness of the sample subjected to analysis. 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 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 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 Crl.A No.2547 of 2008 9 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's case (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's case (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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 17. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court Crl.A No.2547 of 2008 10 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. 18. In the instant case, the prosecution was unable to prove that the arrack allegedly seized from the possession of the accused was subjected to analysis in the laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. 19. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 17.02.2005, it was analysed only on 21.07.2006. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23.07.2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the Crl.A No.2547 of 2008 11 accused.” 20. The unexplained delay of more than a year in the analysis of the sample is also fatal to the prosecution. 21. 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. 22. 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]}. 23. 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. Crl.A No.2547 of 2008 12 24. 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 accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS