Prakasan S/o Rarichankutty, Parambath, Chelavoor AMSOM Desom, Kozhikode Taluk 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. 2037 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 53/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` PRAKASAN, S/O RARICHANKUTTY, PARAMBATH, CHELAVOOR AMSOM DESOM, KOZHIKODE TALUK. BY ADV T.G.RAJENDRAN ``` ## **`RESPONDENTS/COMPLAINANT AND STATE:`** ``` 1THE EXCISE RANGE OFFICER, KOZHIKODE 2STATE 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. 2037 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 01.07.2008, passed by the Additional Sessions Court, Fast Track (Adhoc -II), Kozhikode, in Sessions Case No.53/2005 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 year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.12.2002, at 2.10 pm, the appellant/accused was found in possession of 5 litres of arrack on the VellimadukunnuPuliyamkodekunnu road at Chelvaur, Kozhikode Taluk, 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 ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 4 and proved Exts. P1 to P6 and MO1. 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 addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 2037 OF 2008 ``` ..4.. 6. Heard Sri. T.G. Rajendran, 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 prosecution failed to establish that the sample drawn at the place of occurrence eventually reached the hands of Chemical Examiner. The learned counsel relied on the following circumstances to substantiate his contention. - (i) The prosecution has not offered any explanation as to the delay in bringing the sample to the laboratory after obtaining it from the Court. - (ii) The officials who handled the sample after the same was produced before the Court were not examined as witnesses to rule out the ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** possibility of the sample being changed or tampered with. 8. The alleged seizure was on 21.12.2002. The seizure was effected by the Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad, Kozhikode (PW1). He has given evidence that the accused along with the contraband substance was produced before the Excise Range Inspector, Kozhikode. The date on which the bottle containing the sample and other properties were produced before the Court is not evident as the prosecution has not produced the property list. The bottle containing the sample remained in the custody of the Property Clerk of the Court till the same was forwarded to the laboratory. Ext.P5 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 27.12.2002 of the Judicial First Class Magistrate – I, Kozhikode. The sample reached the laboratory on 20.01.2003. Ext.P5 shows that the sample was delivered in the laboratory by Shri. Abdul ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** Azeez, an Excise Guard. The Property Clerk of the Court and the Excise Guard who delivered the sample to the laboratory were not examined as witnesses. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The necessary inference from Ext.P5 is that the sample was forwarded to the laboratory on 27.12.2002. The custody of the sample during the interregnum, that is, from 27.12.2002 to 20.01.2003, has not been satisfactorily explained by the prosecution. 9. 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 ``` CRL.A NO. 2037 OF 2008 ``` ..7.. possession of the accused. This benefit must be given to the accused.” 10. 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. 11. 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. 12. 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 ``` CRL.A NO. 2037 OF 2008 ``` ..8.. 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 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 ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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] **.** 13. In the present case, the omission on the part of the prosecution to rule out the possibility of the sample being changed or tampered with leads to the conclusion that it failed to establish the link evidence connecting the accused with the contraband substance. 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 the contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated. 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 ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** from the bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused.[vide: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **Sasidharan v. State of Kerala** [2007(1) KHC 275]. 16. 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. 17. The learned counsel for the accused further contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case, the offence was detected by ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** PW1, a Preventive Officer of Excise Enforcement and Narcotic Special Squad, Kozhikode. The detection was made on 21.12.2002. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement ``` CRL.A NO. 2037 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Preventive Officer, Excise Enforcement and Anti Narcotic Special Squad had no such powers. 18. The learned counsel for the appellant/accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse.The learned counsel for the accused relied on **Suresh v. State of Kerala** [2017 (2) KHC 891] to substantiate his contention. While dealing with a similar fact situation this Court in **Suresh's** case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 19. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 20.01.2003, it was subjected to analysis ``` CRL.A NO. 2037 OF 2008 ``` ..13.. only on 26.02.2004. 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 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.” 20. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. ``` CRL.A NO. 2037 OF 2008 ``` ..14.. 21. 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 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** kkj