Paulu @ Paulose 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. 2333 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 435/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` PAULU @ PAULOSE, AGED 39 YEARS S/O THOMAS, COOLIE, VELIYATHUKUDI VEEDU, THRIKKAIPATTA P.O., VYTHIRI TALUK. BY ADV M.RAVIKRISHNAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2333 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 22.09.2008, passed by the Additional Sessions Court (Adhoc -II), Kalpetta in Sessions Case No.435/2006 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 term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 20.01.2006 at 3.30 pm, the appellant/accused was found in possession of 5 litres of arrack at Thrikkaippetta 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 from where it was made over to the trial Court. On the appearance of the accused charge ``` CRL.A NO. 2333 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 P7 and MO1. 5. 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 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. DW1 was examined on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. M.Ravikrishnan, the learned Counsel appearing for the appellant/accused and Smt. ``` CRL.A NO. 2333 OF 2008 ``` ..4.. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused contended that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the Laboratory. The learned counsel relied on the following circumstances to substantiate his contention:- - (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 in Ext.P2 seizure mahazar. - (ii)The detecting officer has not given evidence as to the nature and description of the seal used. - (iii)The officials who handled the sample during its transit from the Court to the laboratory have not been examined. 8. The seizure was effected on 20.01.2006. The preventive officer, PW1, attached to Kalpetta Excise Range, is the detecting officer. He arrested the accused ``` CRL.A NO. 2333 OF 2008 ``` ..5.. from the place of occurrence and seized the contraband substance. Ext. P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1, the detecting officer and other official witnesses had not given evidence as to the nature and description of the seal used. Ext.P4 shows that the bottle containing the sample was produced before the Court on 20.01.2006 and the same was received by the Head Clerk of the Court. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P7 Certificate of Chemical Analysis shows that as per letter No.PR.15/06 dated Nil of the Judicial First Class Magistrate’s Court, Kalpetta, one sealed 375 ml bottle containing 200ml liquid reached the laboratory on 30.01.2006. The sample was delivered in the laboratory by one Shri. C.G. Sureshbabu, an Excise Guard. The sample remained in the custody of the Head Clerk concerned of the Court and Shri. C.G. Sureshbabu, Excise ``` CRL.A NO. 2333 OF 2008 ``` ..6.. Guard, who delivered the sample. These officials were not examined by the prosecution. The inevitable consequence of the omission is that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. The prosecution ought to have examined these officials to rule out the possibility of the sample being changed or tampered with. 9. 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. 10. 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 tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage ``` CRL.A NO. 2333 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** when the contraband reaches the laboratory is required to be established by the prosecution. 11. 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 tamperproof condition. Relying on **State of Rajasthan v. Daulat 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 re-emphasized 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 ``` CRL.A NO. 2333 OF 2008 ``` ..8.. 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] **.** 12. In **Bhaskaran v. State of Kerala** (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. 13. In the present case, as the prosecution failed to prove that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's Laboratory, Ext.P7 Certificate of Chemical ``` CRL.A NO. 2333 OF 2008 ``` ..9.. 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 contraband substance cannot be conclusive proof by itself. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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. 16. The upshot of the above discussion is that the ``` CRL.A NO. 2333 OF 2008 ``` ..10.. conviction entered by the Court below overlooking these vital aspects of the matter cannot be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/-** **K. BABU, JUDGE**