Podiyamma v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 7[TH] DAY OF JULY 2022 / 16TH ASHADHA, 1944 CRL.A NO. 1622 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 503/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA ``` ## **`APPELLANT/S:`** ``` PODIYAMMA VALLIKAYAYIL HOUSE, MOOLAMATTAM KARA,, ARAKULAM VILLAGE, THODUPUZHA TALUK. BY ADV SRI.S.RAJEEV ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM., (CRIME NO.293 OF 2004 OF KANJAR POLICE STATION) ``` ## **`OTHER PRESENT:`** ``` SR PP SMT.REKHA S ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1622 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 16.08.2007, passed by the Additional Sessions Court (Adhoc)-II, Thodupuzha in Sessions Case No.503 of 2006, the accused has preferred this appeal. The appellant was convicted under Section 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 24.12.2004 at 8.20 p.m., the accused was found in possession of 12, 180ml bottles of Indian Made Foreign Liquor in a shed possessed by the accused at Moolamattom in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act before the jurisdictional Magistrate. The case was ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 her for the offence punishable under Section 55(i) 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 3 and proved Exts. P1 to P6 and MO 1 series, MO2 and MO3 series. 5. After the closure of the evidence on behalf of the prosecution, 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. DWs 1 and 2 were 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 ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** Section 55(i) of the Abkari Act and convicted her thereunder. 6. Heard Sri.S. Rajeev, 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 challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the liquor 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) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (ii) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to ``` CRL.A NO. 1622 OF 2007 ``` ..5.. have been affixed on the bottle containing the sample. - (iii) PW3 the detecting officer has not given evidence as to the nature of the seal used. - (iv) The property clerk of the Court and the police official who delivered the sample in the laboratory were not examined by the prosecution. 9. The alleged seizure was on 24.12.2004. PW3, the Sub Inspector of Police, Kanjar detected the offence. He had drawn sample at the place of occurrence. The properties including the sample were produced before the Court only on 30.12.2004 as is evident from Ext.P4 property list. The prosecution has not offered any explanation for the delay in the production of the properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: ``` CRL.A NO. 1622 OF 2007 ``` ..6.. “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext.P1 is the seizure mahazar evidencing drawing of the sample at the scene of occurrence. Ext.P1 does not contain the nature and description of the seal ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** affixed on the bottle containing the sample. PW3 the detecting officer has not given evidence regarding the seal used at the time of sampling. The sample remained in the custody of the property clerk of the Court till 17.01.2005. Ext.P6 shows that the sample was forwarded to the laboratory on 17.01.2005. The sample reached the laboratory only on 18.01.2005. Shri. Biju James, a Police Constable, delivered the sample in the laboratory. The property clerk of the Court and Shri. Biju James were not examined by the prosecution. The omission on the part of the prosecution to examine those two witnesses are fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. 13. 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. ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 14. 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 when the contraband reaches the laboratory is required to be established by the prosecution. 15. 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 ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 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] **.** 16. 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 ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 17. In the present case, the prosecution has failed to show that the liquor allegedly seized from the place of occurrence was examined in the laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 18. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 18.01.2005, it was anlaysed only on 18.05.2006. 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 ``` CRL.A NO. 1622 OF 2007 ``` ..11.. 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.” 19. In the instant case, the delay of more than a year in analysing the sample has not been explained by the prosecution. 20. 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. The appellant/accused is therefore found not guilty of the offence punishable under Section 55(i) 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 ; ``` CRL.A NO. 1622 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** (iii) The accused is acquitted of the offence alleged ; - (iv) She 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** kkj