P. Narayanan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 28[TH] DAY OF FEBRUARY 2024 / 9TH PHALGUNA, 1945 ``` ``` CRL.A NO. 1015 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT SC 300/2007 OF ADDITIONAL SESSN.COURT ``` ``` (ADHOC-II)KASARAGODE ``` ## **`APPELLANT:`** ``` P.NARAYANAN S/O MALINKAN KUNDADUKAM AKKARA, H.NO.2/143,, CHERKALA, CHENGALA VILLAGE,KASARAGOD. ``` ``` BY ADV SRI.T.G.RAJENDRAN ``` ## **`RESPONDENTS:`** ``` 1EXCISE INSPECTOR KASARAGODE. ``` - **`2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR`** SRI.SUDHEER P P ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1015 OF 2009 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## CRL.A.No.1015 of 2009 --------------------------------------Dated this the 28[th] day of February, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 14.05.2009, passed by the Additional Sessions Court, Adhoc-II, Kasaragod, in Sessions Case No.300/2007, 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 period of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 02.08.2003, at 5.30 p.m. the appellant was found in possession of 100 packets each containing 100 ml arrack at Cherkala 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. 1015 OF 2009 ``` ``` 3 ``` 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 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 5 and proved Exts.P1 to P11. 5. After the closure of 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 Sri.T.G.Rajendran, the learned counsel appearing for the appellant/ accused and Sri.G Sudheer, the ``` CRL.A NO. 1015 OF 2009 ``` ``` 4 ``` learned 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 arrack allegedly 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 P5 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 detecting officer has not given evidence as to the nature of the seal used. iii) The specimen of the seal was not produced before the court at the time of production of the properties including the sample. iv) The prosecution has not given any explanation regarding the custody of the sample during the period from 04.08.2003 to 21.08.2003. ``` CRL.A NO. 1015 OF 2009 ``` ``` 5 ``` 9. The alleged seizure was effected on 02.08.2003. The detecting officer has prepared seizure mahazar at the scene of occurrence which is marked as Ext.P5. Ext.P5 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. No materials would show that the specimen of the seal was produced before the court at the time of production of the sample. The detecting officer has also not given evidence regarding the nature of the seal used. 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. Exhibit P10 is the Certificate of Chemical Analysis. It shows that the bottle containing the sample was forwarded to the Chemical Examiner’s Laboratory as per letter dated 04.08.2003 of the Judicial First Class Magistrate Court, ``` CRL.A NO. 1015 OF 2009 ``` ``` 6 ``` Kasaragod. Exhibit P10 would further show that the sample reached the laboratory only on 21.08.2003. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The sample was delivered in the laboratory by an excise guard by name Sri.Robin Francis. The sample remained in the custody of the property clerk. The junior superintendent of the court, the property clerk and Sri.Robin Francis, the Excise Guard were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of various officials who handled the sample during its transit from the court to the laboratory is fatal to the prosecution. 12. 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 ``` CRL.A NO. 1015 OF 2009 ``` ``` 7 ``` 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 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]. 13. Since the prosecution has not proved that the arrack allegedly seized from the place of occurrence eventually ``` CRL.A NO. 1015 OF 2009 ``` ``` 8 ``` reached the hands of the Chemical Examiner, Exhibit P10 Certificate of Chemical Analysis has no evidentiary value. 14. 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. 15. 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 arrack 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]}. 16. In the instant case, the prosecution was unable to establish the link connecting the accused with the arrack 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. 1015 OF 2009 ``` ``` 9 ``` 17. 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 appellant/accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/- K. BABU JUDGE ``` saap ```