Pulikunnel Sasidharan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 CRL.A NO. 2177 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 07.08.2008 IN SC 472/2008 OF ``` # **`SESSIONS COURT, THALASSERY`** ## **`APPELLANT/ACCUSED:`** ``` PULIKUNNEL SASIDHARAN S/O RAGHAVAN,PUTHALAM DESOM, KOLAYAD AMSOM, THALASSERY TALUK. ``` ``` BY ADVS. C.A.JOSEPH K.K.MOIDEEN ``` ## **`RESPONDENT/COMPLAINANT & STATE:`** - `1 EXCISE INSPECTOR, PERAVOOR RANGE, KANNUR DISTRICT` - `2 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 BEEN HEARD ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2177 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No.2177 of 2008 --------------------------------------------- Dated this the 1[st] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 07.08.2008, passed by the Additional Sessions Court (Adhoc-III), Thalassery in Sessions Case No.472 of 2003, 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 one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.01.2000 at 11.30 a.m., the appellant/ accused was found transporting 20 litres of illicit arrack in an autorickshaw bearing Registration No.KL-13A-9947 at Kolayad in Kannur District in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offences punishable under Sections 55 (a), 67B and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` Crl.A.No.2177 of 2008 ``` ``` 3 ``` Sessions Court, from where it was made over to the trial Court. On the appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P8 and MO 1 series. 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. On the side of the defence, DW1 was examined and Exts.D1 and D2 were marked. 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. 6. Heard Sri.C.A. Joseph, the learned counsel appearing for ``` Crl.A.No.2177 of 2008 ``` ``` 4 ``` 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 following grounds:- (1) The delay in the production of the properties, including the sample, has not been satisfactorily explained. (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 01.01.2000. Ext.P6 property list shows that the material objects were produced before the Court only on 04.01.2000. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the ``` Crl.A.No.2177 of 2008 ``` ``` 5 ``` question of delay in production of properties, a Division Bench of this Court held thus: “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.” (emphasis supplied) 10. 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 an 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 the arrest and seizure. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P1 seizure mahazar. The detecting ``` Crl.A.No.2177 of 2008 ``` ``` 6 ``` officer (PW3) has not given evidence as to the nature and description of the seal used at the place of occurrence. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. Ext.P7, copy of the forwarding note is silent as to the specimen of the seal. The specimen of the seal shall be produced before the Court to ensure the genuineness of the sample produced. The specimen seal shall be forwarded to the Chemical Examiner’s laboratory to ascertain the genuineness of the sample. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner’s Laboratory. After the production of the sample before the Court, it remained in the custody of the Property Clerk of the Court. The bottles containing the sample were delivered to the laboratory by an Excise Guard by name Mohammed Haneefa. These witnesses were not examined by the prosecution 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 ``` Crl.A.No.2177 of 2008 ``` ``` 7 ``` tested in the Chemical Examiner's laboratory. 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 tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when it 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 tamper-proof 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 ``` Crl.A.No.2177 of 2008 ``` ``` 8 ``` 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 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)** . 16. In **Bhaskaran v. State of Kerala (2019 (3) KLT SN 34 (C. No.49) : 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 in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 17. 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 ``` Crl.A.No.2177 of 2008 ``` ``` 9 ``` Analysis Report. 18. In **Ramachandran v. State of Kerala (2021 (1) KLT 793)** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamperproof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 19. In the absence of any evidence to show that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 20. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. ``` Crl.A.No.2177 of 2008 ``` ``` 10 ``` 21. 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 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]}. 22. 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 conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK