Rajamani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 2[ND] DAY OF DECEMBER 2022 / 11TH AGRAHAYANA, 1944** **CRL.A NO. 707 OF 2008** **AGAINST THE ORDER/JUDGMENTSC 371/2003 OF III ADDITIONAL DISTRICT** **COURT, KOLLAM CP 26/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,** ## **KARUNAGAPPALLY** ## **APPELLANT:** ## **RAJAMANI** **PUTHUMANASSERIL VEEDU, KOZHIKKODU MEKKU MURI, AYANIVELIKKULANGARA VILLAGE, KOLLAM DISTRICT** **BY ADVS. SRI.R.SURAJ KUMAR SMT.GEETHA P.MENON SRI.C.PRATHAPACHANDRAN PILLAI** ## **RESPONDENT** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **REKHA,GP** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.Appl. No.707 of 2008 2 ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.707 of 2008** --------------------------------------Dated this the 02[nd] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 19.03.2008, passed by the Additional Sessions Court-III, Kollam in S.C.No.371/2003, 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 15.04.1999 at 11.45 a.m., the accused was found possessing one litre of arrack at Ayanivelikulangara Village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant/accused for the offence punishable under Section 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. Crl.Appl. No.707 of 2008 3 On the appearance of the accused, charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 & 6 and proved Exts.P1 to P7, and MO I. 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she 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. S.R Suraj Kumar, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant/accused Crl.Appl. No.707 of 2008 4 challenged the judgment of conviction and sentence on the ground that the prosecution has not suceeded in proving that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant Sri. Suraj Kumar relied on the following circumstances to substantiate his contentions. a) Ext.P2 mahazar does not contain the nature and description of the seal stated to have been afixed on the bottle containing the arrack, seized from the place of occurrence. - b) No specimen of the seal was produced before the Court to ensure the genuineness of contraband produced. - c) There is no evidence to show that the specimen of the seal - was forwarded to the Chemical Examiner for verification. d) The prosecution has not explained the custody of the sample during the interregnum from 28.04.1999 to 07.05.1999. Crl.Appl. No.707 of 2008 5 e) The act of the property clerk taking the sample from the bulk quantity of the arrack produced before the Court has no sanction of law. 9. The alleged seizure was effected on 15.04.1999 by the Preventive Officer, Excise Range, Karunagappally (PW4). According to PW4 he seized MO 1 bottle containing 1 litre of illicit arrack. He prepared Ext.P2 seizure mahazar to evidence seizure of the contraband. The specimen of the seal used by PW4 at the time of sealing the contraband has not been produced before the Court to ensure the genuineness of the contraband produced. There is nothing on record to show that the specimen of the seal was forwarded to the Chemical Examiner for comparison. The forwarding note/requisition for sending of sample has not been produced and marked. 10. 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 Crl.Appl. No.707 of 2008 6 enable the Court to satisfy the genuineness of the sample produced in the Court. 11. In **Ramachandran v. State of Kerala (MANU/KE/3804/2020 : 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. 12. The learned counsel for the appellant further contended that the act of drawing sample by the property clerk of the Court has no sanction of law. In the present case the detecting officer had not taken the sample at the scene of occurrence. PW1, the property clerk drew the sample at the Court and forwarded to the laboratory. This Court in **Baburaj v. State of Kerala [2021 (6) KLT 416]** had considered the legality of drawing sample by the property clerk as per the Crl.Appl. No.707 of 2008 7 ## instruction of the Magistrate concerned. 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 Drawing sample and sealing the same are acts within the exclusive province of the the Police officials or the Excise officials concerned. The act by which the Property Clerk of the Court had drawn the sample is under vehement challenge. This Court had an opportunity to consider the sanctity of the act of the Magistrate taking the sample from act of taking the sample from the contraband himself is irreconcilable. The watertight 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 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 Crl.Appl. No.707 of 2008 8 from the contraband produced before him by the detecting officer.” 13. In **Baburaj v. State of Kerala (Supra)** , this Court further held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, the result of examination based on the sample so drawn has no evidentiary value. 14. Yet another aspect that requires consideration is the delay in the production of the sample to the laboratory after obtaining the same from the Court. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P7 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 28.4.1999 of Judicial Magistrate of First Class, Karunagapally. The sample reached the laboratory on 07.05.1999 and the Excise Preventive Officer by name Sri.Stephen K.P delivered the sample in the laboratory. In the absence of any contra evidence this Court has to infer that the sample was obtained by the officer concerned from the Court on 28.4.1999. In the circumstances, the custody of the sample Crl.Appl. No.707 of 2008 9 during the interregnum from 28.4.1999 to 07.05.1999 is significant. The prosecution has not offered any explanation for the custody of the sample during the interregnum from 28.4.1999 to 07.05.1999. 15. 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.”_ 16. 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 tamperproof condition. _17._ In the present case the Excise officer who delivered the sample in the laboratory has not been examined. Non- Crl.Appl. No.707 of 2008 10 examination of the Excise official who received the sample on 28.4.1999 from the Court and delivered the same in the laboratory on 07.05.1999 is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. Therefore, Ext.P7, Certificate of Chemical Analysis has no evidentiary value. 18. The resultant conclusion is that the prosecution failed 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. 19. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. She is et at liberty. The appeal is allowed as above. Sd/- **K.BABU JUDGE** AP