P. Razak v. State of Kerala (Criminal Appeal No. 2098 of 2007)

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944 CRL.A NO. 2098 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 48/2002 OF ADDITIONAL SESSION.COURT (ADHOC-II)KASARAGODE ``` ## **`APPELLANT/ACCUSED:`** ``` P.RAZAK S/O. ABOOBACKER, CHOORIPPALLAM, NEKRAJE VILLAGE. BY ADV T.B.SHAJIMON ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA ``` ``` REP. BY THE EXCISE INSPECTOR, KASARAGOD EXCISE RANGE,, WHO IS REPRESENTED BEFORE THIS HON'BLE COURT, BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY SMT. REKHA. S. SR PUBLIC PROSECUTOR ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.Appeal No.2098 of 2007 ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 28.09.2007 passed by the Additional Sessions Court (ADHOC-II), Kasaragod in SC.No.48/2002, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 55(a) of the Abkari Act. 3. The prosecution case is that, on 07.07.2000 at about 5.30 p.m., the accused was found transporting 200 packets of illicit arrack, each having 100 ml, in a plastic bag through the Nellikatta Pottipalam road in Chenkalam Panchayat. The Preventive Officer, Excise Range Office, Kasaragod detected the offence. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 55(a) of the Abkari Act before the Judicial First Class Magistrate, 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 accused, charge was framed against him for the aforesaid offence. The accused Crl.Appeal No.2098 of 2007 ..3.. pleaded not guilty and therefore, he came to be tried by the trial court. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MO 1. 6. After the closure of the evidence on behalf of the prosecution, 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 that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 55(a) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a period of one year and to pay a fine of Rs. 1 lakh. 7. Heard Sri.Shajimon T.B., the learned counsel appearing for the appellant/accused and Smt.Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 8. PW1, the Preventive Officer, attached to Excise Range Office, Kasaragod was on patrol duty on 07.07.2000. At Crl.Appeal No.2098 of 2007 ..4.. 5.00 p.m. when the Excise team led by PW1 reached near the building bearing No.8/45 of Chenkalam Panchayath, the accused was found carrying a bag. PW1 inspected the bag and found 200 packets of illicit arrack, each containing 100 ml. The accused was arrested. PW1 seized the contraband substance from the possession of the accused as per Ext.P2 seizure mahazar. 9. PW2, the Excise Guard who had accompanied PW1 at the time of detection of the offence supported the prosecution version. 10. PW4, the Excise Inspector, Kasaragod Range registered the crime against the accused as per Ext.P3. PW4 forwarded properties and the contemporaneous records to the Court. PW5, the Excise Inspector, Kasaragod Range completed investigation and submitted final report. 11. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance, allegedly recovered from the possession of the accused, was eventually analysed in the Chemical Examiner's Laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: Crl.Appeal No.2098 of 2007 ..5.. (a) The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the sample in Ext.P2 seizure mahazar. (b) The detecting officer has not given evidence as to the nature and description of the seal used. (c) There is no evidence to show that the specimen seal was forwarded to the Chemical Examiner's Laboratory so as to ensure the genuineness of the sample forwarded. (d) The prosecution has failed to offer satisfactory explanation for the delay in bringing the sample to the laboratory after obtaining the same from the Court. 12. Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample. PW1, the detecting officer has not given evidence as to this aspect. The detecting officer has not produced the specimen impression of the seal at the time of production of the properties before the Court. Crl.Appeal No.2098 of 2007 ..6.. 13. The genuineness of the contraband produced before the Court is under challenge on the ground that the specimen impression of the seal stated to have been affixed by the detecting officer at the scene of occurrence was not made available. In **Bhaskaran v. State of Kerala** (2020 KHC 5296), this Court held that the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced in the Court. Ext.P4, the property list shows that the sample and the residue were produced before the court on 07.07.2000. The endorsement in Ext.P4 further shows that those articles were returned to the custody of the officer who produced the same before the Court. No material has been produced to show the date on which those articles were subsequently produced before the Court. The custody of the sample and other articles during the interregnum in which the articles were returned to the Excise Officials and later resubmitted, has not been satisfactorily explained by the prosecution. Ext.P5 is the copy of the forwarding note prepared by the Excise Inspector, Kasaragod Range. The space meant for entering the sample seal in Ext.P5 is left vacant. The necessary inference is that ..7.. Crl.Appeal No.2098 of 2007 the prosecution failed to prove that the specimen sample was forwarded to the Chemical Examiner's Laboratory. Ext.P5 further shows that the sample was forwarded to the laboratory on 07.07.2000 through the Excise Guard by name Renny Fernandez. Ext.P6, the certificate of chemical analysis shows that the sample was received in the laboratory only on 29.07.2000, after a long lapse of almost 22 days. The prosecution has not offered any explanation as to the delay in producing the sample. 14. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” ## 15. In the absence of any satisfactory explanation for the Crl.Appeal No.2098 of 2007 ..8.. delay in the production of the sample before the laboratory after the same was forwarded from the Court, it cannot be concluded that the sample reached the laboratory in a tamperproof condition. 16. Another aspect to be considered is the delay in the analysis of sample. Ext.P6 shows that though the sample was received in the laboratory on 29.07.2000, the same was subjected to analysis only on 29.05.2001. On the question of delay in the analysis of the sample in **Krishnadas v. State of Kerala** (2019 KHC 191), this Court held thus: “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 accused.” 17. In the present case, the delay of 10 months in analysing the sample has not been explained. Crl.Appeal No.2098 of 2007 ..9.. 18. The prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the accused is entitled to the benefit of doubt arising from the absence of link evidence and other circumstances discussed above. 19. 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 offence punishable under Section 55(a) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** kkj