Raghunathan Pillai v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 22[ND] DAY OF JUNE 2022 / 1ST ASHADHA, 1944 CRL.A NO. 1816 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 06.08.2008 IN SC 1020/2006 OF ADDITIONAL DISTRICT COURT (ADHOC-I), KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` RAGHUNATHAN PILLAI, S/O. RAGHAVAN PILLAI, LEKSHMA VEEDU COLONY, NENMENI KIZHAKKE MURI, MANTROTHURUTHU VILLAGE. ``` ``` BY ADVS. K.SIJU PRATHEESH.P T.M.RESHMI ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE, KOLLAM, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SRI. RAJESH A. -SPL.GP(VIGILANCE) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 22.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1816 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1816 of 2008 --------------------------------------------- ## Dated this the 22[nd] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 06.08.2008, passed by the Additional District and Sessions Court-I (Adhoc), Kollam in Sessions Case No1020/2006, the accused has preferred this appeal. The appellant was convicted under Section 55(i) 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 16.11.2003 at 5.45 p.m., the accused was found in possession of 4 litres of arrack on the eastern side of Idiyakkadavu palam in Mantrothuruthu village 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 Sections 55 (a) and 55(i) 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 charges were framed against him for the offences ``` Crl.A.No.1816 of 2008 ``` ``` 3 ``` punishable under Sections 55(a) & (i) 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 and 3 and proved Exts. P1 to P9 and MOs I & II. 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 55(i) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Siju Kamalasanan, the learned counsel appearing for the appellant/accused and Sri. Rajesh A., the learned Special Government Pleader appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (1) The arrest of the accused as alleged by the prosecution is doubtful. ``` Crl.A.No.1816 of 2008 ``` ``` 4 ``` (2) The prosecution failed to prove that the arrack allegedly seized from the place of occurrence reached the Chemical Examiner’s Laboratory. 8. The alleged seizure and arrest were effected on 16.11.2003 by the Sub Inspector of Police, East Kallada (PW2). 9. The learned counsel for the appellant/accused contended that the arrest itself is doubtful in view of the presence of the crime number in Ext.P2 arrest memo. Ext.P2 contains the number of crime (187/2003 of East Kallada Police Station) registered against the accused. While dealing with a similar fact situation this Court in in ## **Santhosh v. State of Kerala** [2021 (5) KHC 214], “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)].” ``` Crl.A.No.1816 of 2008 ``` ``` 5 ``` 10. The prosecution has not offered any satisfactory explanation regarding the presence of the crime number in Ext.P2. Therefore, a doubt arises in the manner in which seizure and arrest were effected. 11. The learned counsel for the appellant/accused relying on the following circumstances contended that the prosecution failed to establish that the illicit arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. - (a) The delay in the production of properties including the sample has not been explained by the prosecutions. (b) The nature and description of the seal stated to have been affixed on the bottle containing the sample had not been narrated in the Ext.P1 seizure mahazar. 13. Though the seizure was effected on 16.11.2003, the properties including the sample reached the Court only on 18.11.2003. The prosecution has not offered any explanation for the delay in the production of properties including sample before the Court. 14. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties a Division Bench of ``` Crl.A.No.1816 of 2008 ``` ``` 6 ``` ## 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.” 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 explanation for the delay when there is delayed production of the property. 15. 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. 16. No specimen seal was produced before the Court at the time of production of the sample thereby the officer concerned in the Court had no opportunity to ascertain the genuineness of the sample produced. PW2, the detecting officer has also not given evidence as to the nature and description of the seal stated to have ``` Crl.A.No.1816 of 2008 ``` ``` 7 ``` been affixed on the bottle containing the sample. 17. The sample remained in the custody of the Property Clerk of the Court till 08.12.2003. The sample was forwarded to the laboratory as per letter dated 08.12.2003 of the Judicial First Class Magistrate Court, Kollam. The sample was delivered to the laboratory only on 09.12.2003 by a Police Constable No.5191. Neither the Property Clerk of the Court nor the police official who delivered the sample in the laboratory was examined to rule out the possibility of the sample being changed or tampered with. 18. Ext.P8, the forwarding note does not contain the specimen of the seal affixed on the bottle containing the sample. The necessary inference is that the prosecution failed to prove that the specimen seal was forwarded to the laboratory to enable the analyst to ascertain the genuineness of the sample produced for analysis. 19. 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. 20. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of ``` Crl.A.No.1816 of 2008 ``` ``` 8 ``` 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. 21. 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. Daulath 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 reemphasized 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 ``` Crl.A.No.1816 of 2008 ``` ``` 9 ``` 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)** . 22. In **Bhaskaran v. State of Kerala (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. 23. In the absence of any evidence that the arrack recovered from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P9 has not evidentiary value. 24. Another aspect that requires consideration is the delay in the analysis of the sample. Though the sample reached the laboratory on 09.12.2003, it was analysed only on 29.11.2004. Prosecution has not offered any explanation for the delay in the analysis of the sample. 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 ``` Crl.A.No.1816 of 2008 ``` ``` 10 ``` 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.” 25. In the instant case, delay more than 11 months in analysing the sample has not been explained by the prosecution. 26. 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. 27. 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]}. ``` Crl.A.No.1816 of 2008 ``` ``` 11 ``` 28. 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. 29. The conviction and sentence recorded by the trial court cannot be sustained. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK