Prabhakaran Nambiar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 28[TH] DAY OF JUNE 2022 / 7TH ASHADHA, 1944 ``` ``` CRL.A NO. 1698 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 995/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` PRABHAKARAN NAMBIAR S/O.KELAPPAN NAMBIAR, THEVAROLI, THURAYOOR AMSOM DESOM, KOYILANDY, KOZHIKODE. ``` ``` BY ADVS. P.SANJAY M.MUHAMMED SHAFI ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT.REKHA S,SR PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 28.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1698 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** ======================== **Criminal Appeal No.1698 of 2008** ======================== Dated this the 28[th] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 18.07.2008, passed by the Additional District & Sessions Judge, Fast Track Court (Adhoc-I) Kozhikode in S.C.No.995/2004, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 12.12.2002 at about 5.45 p.m., the accused was found in possession of 10 litres of arrack at Payyoli, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant 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 ``` CRL.A NO. 1698 OF 2008 ``` ``` 3 ``` 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 prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. P. Sanjay, 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 challenged the judgment of conviction and sentence on the ground that the ``` CRL.A NO. 1698 OF 2008 ``` ``` 4 ``` prosecution failed to establish that the arrack 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. A. The custody of the sample during the interregnum, from 13.12.2002 to 24.01.2003 has not been satisfactorily explained by the prosecution. B. The officials who handled the sample during its transit from the Court to the laboratory, were not examined as witnesses by the prosecution. C. The prosecution has not offered any explanation for the delay in the analysis of the sample. 9. The seizure was effected by PW1, the Preventive Officer attached to the Excise Circle Office, Perambra. According to PW1, the accused was arrested along with the contraband substance from the scene of occurrence. PW1 had drawn 180 ml of arrack allegedly seized from the place ``` CRL.A NO. 1698 OF 2008 ``` ``` 5 ``` of occurrence in a 180 ml bottle to be used as sample. The bottle containing the sample was produced before the Court only on 13.12.2002. 10. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The prosecution has also not given evidence regarding the Excise Officials with whom 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 13.12.2002 of the Judicial First Class Magistrate Court Payyoli. In the absence of any contra evidence, inference to be drawn is that on 13.12.2002, an Excise Official obtained the sample from the Court. Ext.P7 further shows that the sample reached the laboratory only on 24.01.2003. The sample was delivered in the laboratory by Sri. Manoj Kumar K.T., an Excise Guard. The custody of the sample during the interregnum from 13.12.2002 to 24.01.2003 has not been explained by the prosecution. Sri. Manoj Kumar K.T., the Excise Guard who delivered the sample in the laboratory was not examined as witness. There is also no evidence to ascertain the name of the Excise Official, who received the ``` CRL.A NO. 1698 OF 2008 ``` ``` 6 ``` sample from the laboratory. The property clerk of the Court was also not examined by the prosecution. The non examination of the property clerk of the Court and Sri. Manoj Kumar K.T. is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tamper 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 tamper-proof 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. 13. In **Sasidharan v. State of Kerala [2007 (1)** ``` CRL.A NO. 1698 OF 2008 ``` ``` 7 ``` **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 Rajastan v. Daulath 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 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 ``` CRL.A NO. 1698 OF 2008 ``` ``` 8 ``` (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. 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 evidentiary value can be attached to the Chemical Analysis Report. 15. In the instant case as the prosecution failed to show that the arrack allegedly seized from the place of occurrence was analyzed in the Chemical Examiner's Laboratory, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 16. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 24.01.2003, it was subjected to analysis only on 19.02.2004. 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 ``` CRL.A NO. 1698 OF 2008 ``` ``` 9 ``` 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 instant case, the delay of almost a year in analysing the sample has not been explained by the prosecution. 18. 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. 19. 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, ``` CRL.A NO. 1698 OF 2008 ``` ``` 10 ``` therefore, be sustained. The appellant/accused is, therefore, found not guilty of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU