R. Babu v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944** ## **CRL.A NO. 866 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 501/2006 OF ADDITIONAL SESSIONS** ## **COURT (ADHOC-II),KASARAGODE** **CC 255/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, KASARAGOD** ## **APPELLANT/ACCUSED:** R.BABU,S/O.RAMAPPA, CHENNIKKARA, NULLIPPADY, KASARAGOD MUNICIPALITY. BY ADV SRI.T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 EXCISE INSPECTOR, KASARAGOD EXCISE RANGE. 2 STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM BY ADV SMT.REKHA.S -SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.866 of 2008 2 K.BABU, J. -------------------------------------- Criminal Appeal No.866 of 2008 --------------------------------------Dated this the 20[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.04.2008, passed by the Additional Sessions Court (Adhoc-II), Kasaragod in S.C.No.501/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.05.2001 at 2.00 p.m., the appellant/accused was found possessing 10 litres of arrack in a can having a capacity of 10 litres through the road in front of the main gate of the common funeral ground of the Kasaragod Municipality. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 55(a) 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 Crl.A No.866 of 2008 3 accused, charge was framed against him for the offence punishable under Section 55(a) 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. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 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 respondents. 7. The learned counsel for the appellant/accused challenged the judgment of conviction and sentence on the ground that the Crl.A No.866 of 2008 4 prosecution failed to establish that the contraband substance allegedly recovered 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) Exhibit P2, the seizure mahazar, does not contain - the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) The specimen of the seal was not produced before - the Court at the time of production of the properties including the sample. - (iii) The residue of the contraband produced before the Court was returned to the Excise officials. But - the prosecution has not given any satisfactory explanation as to what happened to the same later. - (iv) PW1, the detecting officer, has not given evidence - as to the nature of the seal used. Crl.A No.866 of 2008 5 - (v) The various officials, who handled the sample during its transit from the Court to the laboratory, were not examined by the prosecution. 9. The alleged seizure was on 18.05.2001. The Excise Inspector, Kasaragode (PW1) effected the arrest and seizure. PW1 had drawn sample from the contraband substance seized at the place of occurrence. Though he stated that he had sealed the bottle containing the sample with his personal seal, the nature and description of the same was not narrated in Ext.P2 seizure mahazar. He also failed to give evidence as to the nature and description of the seal used by him at the time of drawing and sealing the sample. 10. Exhibit P4, the list of properties, shows that the properties, including the sample, were produced before the Court on 19.05.2001. The endorsement on the backside of Ext.P4 shows that a can containing the arrack seized from the place of occurrence was returned to the Excise Inspector for keeping in his safe custody. During the trial, the can was not marked. There was no satisfactory explanation as to the whereabouts of the residue of the contraband seized. The learned counsel for the appellant submitted that this Crl.A No.866 of 2008 6 casts doubt on the foundation of the prosecution case. 11. No specimen of the seal was produced before the Court to ascertain the genuineness of the properties, including the sample, produced before the Court. Exhibit P6, the Certificate of Chemical Analysis, shows that the sample was forwarded to the Chemical Examiner's Laboratory as per letter dated 19.05.2001 of the Judicial First Class Magistrate, Kasaragode. The prosecution has not given evidence as to the date on which the sample was forwarded to the Laboratory. Therefore, the necessary inference is that the sample was forwarded to the laboratory on 19.05.2001. The sample reached the laboratory only on 19.06.2001 as is evident from Ext.P6. No satisfactory explanation was offered by the prosecution as to the the custody of the sample during the interregnum from 19.05.2001 to 19.06.2001. Sri.Sankaran K.P, the Excise Guard who delivered the sample in the laboratory was not examined as a witness. Exhibit P4 shows that the sample was received by the Junior Superintendent of the Court on 19.05.2001. It also remained in the custody of the property clerk of the Court. These officials of the Court and the Excise Guard concerned were not examined by the prosecution to Crl.A No.866 of 2008 7 rule out the possibility of the sample being changed or tampered with. Absolutely, there is no explanation for the delay in bringing the sample to the laboratory after the same was received from the Court. 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 possession of the accused. This benefit must be given to the accused.” 12. 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. 13. A legal obligation is cast on the prosecution to prove that 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 Crl.A No.866 of 2008 8 commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 14. 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's case (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's case (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 Crl.A No.866 of 2008 9 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 15. In Bhaskaran K. v. State of Kerala and another (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. 16. Yet another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 19.06.2001, it was subject to analysis only on 09.07.2002. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “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 Crl.A No.866 of 2008 10 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 present case, the delay in the analysis of the sample remained unexplained. 18. In the instant case, the prosecution has failed to prove that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. Therefore, Exhibit P6 Certificate of Chemical Analysis has no evidentiary vale. 19. 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. 20. 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 Crl.A No.866 of 2008 11 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]}. 21. 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. 22. 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. 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 KAS