Paanikulam Mariyakutty v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** **CRL.A NO. 2021 OF 2008** **AGAINST THE JUDGMENT IN SC 293/2004 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-III, THALASSERY** ## **APPELLANT/ACCUSED:** PAANIKULAM MARIYAKUTTY, D/O KURIAN, CHANAPPARA, KANICHAR AMSOM DESOM, THALASSERY TALUK. BY ADV C.P.PEETHAMBARAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2021 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.2021 of 2008 --------------------------------------Dated this the 2[nd] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 21.08.2008, passed by the Additional Sessions Court, (Adhoc-III), Thalassery in S.C.No.293/2004, the appellant/accused has preferred this appeal. The appellant/accused was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 19.11.1999 at 1.30 p.m., the appellant/accused was found in possession of 16 bottles each containing 375 ml of Indian Made Foreign Liquor (IMFL) at Chanappara in Kanichar amsom desom. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from Crl.A No.2021 of 2008 3 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 55(a) 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 5 and proved Exts.P1 to P7, MO1 series and MO2. 5. After the closure of the prosecution evidence, the 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. C.P.Peethambaran, 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 contended that the Crl.A No.2021 of 2008 4 prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) The detecting officer has not narrated 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 forwarded to the Chemical Examiner's laboratory to ascertain the genuineness of the sample. - (iii) The delay in bringing the sample to the laboratory after obtaining it from the Court has not been explained by the prosecution. 8. Exhibit P2 is the seizure mahazar dated 19.11.1999 prepared by the detecting officer. Exhibit P2 does not contain the nature and description of the seal used by the detecting officer. He has not given evidence as to the nature and description of the seal Crl.A No.2021 of 2008 5 used. 9. Exhibit P6, copy of the forwarding note, shows that the specimen of the seal stated to have been affixed on the bottle containing the sample had not been forwarded to the Chemical Examiner for verification. Exhibit P6 contains only the seal of the jurisdictional Court concerned. 10. The bottle containing the sample remained in the custody of the property clerk of the Court, the Excise official who received the sample from the Court and the Excise official who delivered the sample to the laboratory. The prosecution has not examined these witnesses to rule out the possibility of the sample being changed or tampered with. 11. 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. 12. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of Crl.A No.2021 of 2008 6 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 it reaches the laboratory is required to be established by the prosecution. 13. 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 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 Crl.A No.2021 of 2008 7 (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]. 14. 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. 15. 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 Crl.A No.2021 of 2008 8 evidentiary value can be attached to the Chemical Analysis Report. 16. In the present case, the prosecution has not complied with the requirements as discussed in the precedents noted above. 17. Yet another aspect that requires consideration is the delay in bringing the sample to the laboratory. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P7, the Certificate of Chemical Analysis, shows that as per letter dated 19.11.1999 of the Judicial First Class Magistrate Court, Kuthuparamba the sample was forwarded to the laboratory. But, the sample reached the laboratory only on 07.12.1999. The sample was delivered to the laboratory by Sri.K.K.Mohamed Haneefa, an Excise Guard. He has not been examined as a witness. The custody of the article during the period from 19.11.1999 to 07.12.1999 has not been explained by the prosecution. 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 Crl.A No.2021 of 2008 9 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.” 18. In the absence of any satisfactory explanation for the 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 tamper-proof condition. 19. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the laboratory. The resultant conclusion is that Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 20. 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. 21. It is settled that the prosecution in a case of this nature Crl.A No.2021 of 2008 10 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]}. 22. 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. 23. 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. She is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS