Radhan @ Radhakrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 20[TH] DAY OF MAY 2022 / 30TH VAISAKHA, 1944** **CRL.A NO. 420 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 286/2005 DATED 31.01.2007 OF ADDITIONAL DISTRICT & SESSIONS JUDGE FAST TRACT COURT (ADHOC-I), KOZHIKODE** ## **APPELLANT/ACCUSED:** RADHAN @ RADHAKRISHNAN, AGED 42 YEARS S/O.KUTTIKRISHNAN NAIR, KALAPPARAMBATH (H), VENGERI AMSOM,, KOZHIKODE (DT). BY ADVS. SRI.K.H.SAKIR SRI.TOMY JOHN VETTATH SRI.T.K.SANDEEP SRI.ARJUN SREEDHAR SRI.ARUN KRISHNA DHAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV PUBLIC PROSECUTOR ## **OTHER PRESENT:** SMT. REKHA. S. (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 420 of 2007 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.420 of 2007 --------------------------------------Dated this the 20[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 31.01.2007, in S.C No.286/2005, passed by the Additional District and Session Court, Kozhikode, the accused has preferred this appeal. 2. The trial court convicted the accused for the offence punishable under Section 8(2) of the Kerala Abkari Act. 3. The prosecution case is that on 17.03.2003, at about 2.30.p.m the accused was found in possession of 5 litres of arrack on the public road in front of Government I.T.I, Vengeri. 4. 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 Judicial First Class Magistrate Court-I, Kozhikode. Crl.A No. 420 of 2007 3 The case was committed to the Sessions Court, Kozhikode from where it was made over to the 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. 5. The prosecution examined Pws 1 to 6 and proved Exts.P1 to P7 and MO1. 6. 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 that there is 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. From the side of the defence DW1 was examined. The trial court, after hearing the arguments addressed from both sides, found that the accused is 4 Crl.A No. 420 of 2007 guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. 7. Heard Sri.T.K Sandeep, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband substance allegedly recovered from the scene of occurrence was actually subjected to analysis in the Chemical Examiner's Laboratory. 9. The learned Public Prosecutor, per contra, submitted that sufficient materials are there to establish the charge against the accused. 10. PW1, the Preventive Officer of Kozhikod Excise Enforcement and Anti-Narcotics Special Squad was on patrol duty on 17.03.2003. When the excise team led by 5 Crl.A No. 420 of 2007 PW1 reached near the Government I.T.I, Vengeri, they found the accused carrying a plastic can. The accused was intercepted by the excise team. On verification, it was found that the plastic can contained 5 litres of illicit arrack. PW1 arrested the accused and seized the contraband substance found in his possession. PW1 collected 180 ml of liquid contained in the can and sealed it to be used as sample. He prepared Ext.P2 seizure mahazar. PW3, the excise guard who had accompanied PW1, supported the prosecution. PW1 entrusted the accused and the contraband substances recovered from the possession of the accused along with the contemporaneous records with PW4, the Circle Inspector of Excise, Kozhikode Excise Range. PW6, the Excise Inspector, Kozhikode Excise Range Office, conducted investigation and submitted final report in the matter. PW5, the independent witness, did not support the prosecution case. 11. The learned counsel for the appellant contended Crl.A No. 420 of 2007 6 that the prosecution failed to establish the link evidence to ensure that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's Laboratory. The learned counsel submitted that the various officials who handled the sample during the transit from the Court to the Chemical Examiner's laboratory were not examined to rule out the possibility of tampering with the sample. 12. Exhibit P6 is the copy of the forwarding note. Ext.P6 shows that the sample was forwarded through an Excise Guard by name B.Balachandran. The prosecution has not adduced any evidence as to the date on which the sample was forwarded to the Chemical Examiner's Laboratory from the Court. Exhibit P6 is dated 17.03.2003. Though the learned Magistrate has put his initials in Ext.P6, he has not recorded the date on which he made the initial. Exhibit P7, the certificate of chemical analysis shows that one sealed 180 ml bottle containing 180 ml of colourless clear liquid, alleged to Crl.A No. 420 of 2007 7 be arrack, was received in the laboratory on 11.04.2003 as per letter dated PR 60/03 dated 17.03.2003. In the absence of any evidence as to the date on which the sample was handed over to the Excise Official concerned, the necessary inference is that the excise official concerned received the sample, from the Court on 17.03.2003. But the sample reached the laboratory only on 11.04.2003. The delay in bringing the sample to the laboratory has not been explained by the Prosecution. 13. 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_ 8 Crl.A No. 420 of 2007 _the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ _14._ In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 15. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 11.04.2003, it was subjected to analysis only on 11.03.2004. 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_ Crl.A No. 420 of 2007 9 _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.”_ _16._ In the instant case, the delay of more than o n e y e a r in analysing the sample has not been explained by the prosecution. 17. The materials placed before the Court would reveal that the sample changed several hands during the transit from the place of occurrence to the laboratory through the Court. None of the officials who handled the sample during different stages were examined by the prosecution. The omission on the part of the prosecution in examining those officials, who handled the sample, leads to the inference that the prosecution failed to rule out the possibility of the sample being changed or tampered with. In the absence of any convincing evidence that the contraband substance 10 Crl.A No. 420 of 2007 allegedly recovered from the scene of occurrence eventually reached the hands of the chemical analysts, Ext.P7 certificate of chemical analysis has no evidentiary value. 18. 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. 19. 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 and other circumstances discussed above. 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 11 Crl.A No. 420 of 2007 sustained. The appellant/accused is, therefore, not guilty of the offence punishable under Section 8 (2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk