PRAKASH v. STATE OF KERALA

**PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 19[TH] DAY OF DECEMBER 2022 / 28TH AGRAHAYANA, 1944** **CRL.A NO. 1410 OF 2006** **AGAINST THE JUDGMENT IN SC 967/2004 OF ADDITIONAL DISTRICT AND SESSIONS COURT (FAST TRACK-I), TRIVANDRUM** ## **APPELLANT/1ST ACCUSED:** PRAKASH, AGED 30 YEARS, S/O.AMBUJAKSHAN, VILAYIL VEEDU, MEVARKKAL DESOM, VANCHIYOOR VILLAGE, CHIRAYINKEEZH TALUK. BY ADV SRI.K.C.ELDHO ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, VARKALA RANGE, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1410 of 2006 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1410 of 2006 --------------------------------------Dated this the 19[th] day of December, 2022 ## JUDGMENT Aggrieved by the judgment dated 14.07.2006, passed by the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram in S.C.No.967/2004, the appellant/accused No.1 has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of four years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 26.04.2000 at 8.00 p.m, the the appellant/accused No.1 and accused No.2 were found in possession of 70 litres of spirit in two white cans having a capacity of 35 litres each in an autorickshaw bearing registration No.KL-02C-5857 along with Varkala Kappil road in front of Kappil ration shop, 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 3 Crl.A No.1410 of 2006 Sections 55(a) and 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 them for the offence punishable under Sections 55(a) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they 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 P6 and MOI series. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused No.1 and accused No.2 for the aforesaid offence. 6. Heard Sri. K.C.Eldho, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha.S, the learned Senior Crl.A No.1410 of 2006 4 ## Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused No.1 challenged the judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish the genuineness of the contraband substance produced before the Court. - (ii) The procedure in which the sample was taken by a staff of the Court at the instruction of the jurisdictional Court concerned has no sanction of law. - (iii) The prosecution could not establish the tamper-proof despatch of the sample to the laboratory. 8. The alleged seizure was effected on 26.04.2000 by the Excise Inspector (PW3), Varkala Excise Range. He had seized 70 litres of spirit kept in a vehicle bearing registration No.KL-02-C5859 from the place of occurrence. PW3 had prepared Ext.P1 seizure mahazar to evidence seizure. PW3 gave evidence that he Crl.A No.1410 of 2006 5 had produced the spirit recovered before the Court. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the cans containing the contraband substance recovered from the scene of occurrence. The specimen of the seal was not produced before the Court to ensure the genuineness of the contraband allegedly seized from the possession of the accused. In order to ensure the genuineness of the contraband substance produced before the Court, the detecting officer should have produced the specimen of the seal affixed on the cans containing the contraband substance at the time of production of the same before the Court. He had not even narrated the nature of the seal affixed on the cans in Ext.P1. The property list was not produced and marked. The date on which the cans containing spirit were produced before the Court is also not evident from the contemporaneous records. The absence of the specimen seal at the time of the production of the property and the non-production of the property list would lead to the conclusion that the prosecution failed to establish the genuineness of the contraband substance produced before the Court. Crl.A No.1410 of 2006 6 9. Yet another aspect that requires consideration is the procedure adopted by the jurisdictional Magistrate directing an officer of the Court to draw sample from the bulk quantity of the spirit produced before the Court. It is discernible from the judgment impugned that the jurisdictional Magistrate had directed some of the staff concerned to draw the sample and forward the same to the laboratory. The sanctity of the procedure adopted by the jurisdictional Magistrate in drawing the sample is under challenge. 10. The learned counsel for the appellant relied on Baburaj v. State of Kerala [2021 (6) KLT 416] to substantiate his contentions. This Court in Baburaj (supra) had considered the legality of the procedure in which the officer of the Court taking sample from the contraband produced before the Court. In Baburaj (supra) this Court held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final Crl.A No.1410 of 2006 7 report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 11. In Baburaj this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk of the Court has no sanction of law, the Chemical Analysis Report obtained based on the sample so drawn has no evidentiary value. 12. The various officials who dealt with the sample were not examined by the prosecution. The prosecution has no clarity as to Crl.A No.1410 of 2006 8 the person who had drawn the sample. The property clerk of the Court, who is usually the custodian of the property in Court has also not been examined. The Excise official by name Lalikuttan delivered the sample to the laboratory. He was also not examined as a witness. Non-examination of those officials who handled the sample during different stages is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 13. In the instant case, the prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, Exhibit P6 Certificate of Chemical 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 the contraband substance cannot be conclusive proof by itself and that 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 Crl.A No.1410 of 2006 9 which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275]}. 16. In the instant case, the prosecution has miserably failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused No.1 is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. 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. In the result, the appellant/accused No.1 is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS