P.K. SURESH v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 CRL.A NO. 2070 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 46/2007 OF ADDITIONAL DISTRICT COURT** **(ADHOC), KOZHIKODE** ## **APPELLANT/ACCUSED:** P.K.SURESH, S/O ARYAN, VALLIYEDATHU PURAYIL HOUSE, MADAVOOR VILLAGE, KOZHIKODE TALUK, KOZHIKODE TALUK, KOZHIKODE DIST. BY ADV P.R.SREEJITH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 2070 of 2008 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.2070 of 2008 --------------------------------------Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 18.08.2008, passed by the Additional District and Sessions Court, Fast Track(Adhoc)-I, Kozhikode in Sessions Case No.46/2007, 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 1 ½ years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 30.01.2003 at 5.30 p.m the appellant/accused was found in possession and transporting of illicit arrack in a bottle containing one litre near Thachurithazham Angady in Madavoor Village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final Crl.A No. 2070 of 2008 3 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 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 P7 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, 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. The Trial Court, after hearing the arguments Crl.A No. 2070 of 2008 4 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.P.R Sreejith, 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/accused challenged the judgment of conviction and sentence on the ground that the prosecution failed to prove that the arrack allegedly recovered from the possession of the accused eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions. a) The delay in bringing the sample in the laboratory after obtaining it from the Court has not been explained by the prosecution. b) The various officials who handled the sample Crl.A No. 2070 of 2008 5 during its transit from the Court to the laboratory were not examined. c) The delay in analysis of the sample was not explained by the prosecution. 9. The alleged seizure and arrest were effected on 30.01.2003 by the Excise Inspector, Excise Enforcement and Anti Narcotic Special Squad, Kozhikode. The accused, along with the properties seized, was produced before the Excise Inspector, Chelannur Excise Range. The properties, including the sample, were produced before the Court on 31.01.2003. The sample was received by the Junior Superintendent of the Court on 31.01.2003. The sample remained in the custody of the property clerk of the Court till it was forwarded to the Chemical Examiner's Laboratory. 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 the sample was forwarded to the laboratory as per letter dated 06.03.2003 of the Judicial First Class Magistrate, Crl.A No. 2070 of 2008 6 Kozhikode. In the absence of contra evidence the necessary inference is that the sample was forwarded through the excise guard concerned on 06.03.2003 but it reached the laboratory only on 17.03.2003. The prosecution has not offered any explanation for the delay in the production of the sample before the laboratory. The custody of the sample during the period from 06.03.2003 to 17.03.2003 has not been explained by the prosecution. 10. 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_ Crl.A No. 2070 of 2008 7 _benefit must be given to the accused.”_ As mentioned above, the sample remained in the custody of the Junior Superintendent of the Court, the property clerk of the Court and Sri.P. Krishnan Nair, the excise guard who handed over the sample in the laboratory. Those officials were not examined by the prosecution 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 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. 2070 of 2008 8 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 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 Court further held that Courts could presume that an official Crl.A No. 2070 of 2008 9 act was regularly and properly performed only if the said act was shown to have been performed. This Court specified that the presumption under S. 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). 14. Though the sample reached the laboratory on 17.03.2003, it was analysed only on 10.08.2004. While dealing with the delay in 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,_ Crl.A No. 2070 of 2008 10 _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.”_ 15. The prosecution has failed to establish that the contraband substance seized from the place of occurrence eventually was examined at the Chemical Examiner's Laboratory. Therefore, Ext.P7, Certificate of Chemical Analysis has no evidentiary value. 16. 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. 17. 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 Crl.A No. 2070 of 2008 11 of doubt arising from the absence of link evidence and other circumstances discussed above. 18. 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 under Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. **==> picture [320 x 50] intentionally omitted <==** Sd/- K.BABU, JUDGE rpk