Rajan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 12[TH] DAY OF MARCH 2024 / 22ND PHALGUNA, 1945** ## **CRL.A NO. 665 OF 2011** **AGAINST THE JUDGMENT DATED 14.12.2010 IN SC NO.353 OF 2008 OF** **ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK NO.I, THRISSUR APPELLANT/ACCUSED NO.1:** **RAJAN, S/O THANKAPPAN, MADATHIL HOUSE, KUTTICHIRA VILLAGE, CHAIPPANKUZHI. BY ADV SRI.A.C.DEVY** ## **RESPONDENT/STATE:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.665 of 2011 2 K.BABU, J. -------------------------------------Criminal Appeal No.665 of 2011 --------------------------------------Dated this the 12[th] day of March, 2024 ## JUDGMENT Aggrieved by the judgment dated 14.12.2010, passed by the Additional District and Sessions Court, Fast Track No.I, Thrissur in S.C.No.353/2008, the appellant/accused No.1 has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 23.11.2006 at 12.00 noon, accused No.1 was found in possession of 1 litre of arrack in a plastic can and he was also keeping 1000 litres of wash, implements and apparatus for manufacturing arrack at Chaipankuzhy in Kodassery panchayath 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(g) and 8(2) of the Abkari Act before the jurisdictional Crl.A No.665 of 2011 3 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 them for the offences punishable under Sections 55(a), 55(g) and 58 of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 3 and proved Exts.P1 to P8 and MO1. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused No.1 for the aforesaid offences. Accused No.2 is acquitted of the offences. 6. Heard the learned counsel appearing for the appellant/accused No.1 and the learned Public Prosecutor Crl.A No.665 of 2011 4 appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that 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 relied on the following circumstances to substantiate his contentions: - (i) The contemporaneous documents prepared - at the time of seizure do not contain the nature and description of the seal stated to have been affixed on the bottles containing the samples. - (ii) The specimen of the seal was not produced before the Court to ensure the genuineness of the samples. - (iii) The various officials who handled the samples during its transit from the Court to - the laboratory were not examined by the Crl.A No.665 of 2011 5 prosecution. 9. The alleged seizure was effected on 23.11.2006. No seizure mahazar was seen prepared. Exhibit P1 is the search list. The documents prepared at the scene of occurrence do not contain the specimen of the seal stated to have been affixed on the bottles containing the samples. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner for verification. Exhibit P6 copy of the forwarding note does not contain the specimen seal used. The space meant for entering the name of the official with whom the samples were forwarded to the laboratory is left vacant in Ext.P6 forwarding note. 10. 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. 11. In Rajamma v. State of Kerala [2014 (1) KLT 506], this Court Crl.A No.665 of 2011 6 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 Analysis Report. 12. The properties containing the samples remained in the possession of the property clerk till 22.12.2006. The bottles containing the samples were forwarded to the laboratory through a Police Constable No.4904. The property clerk and the Police Constable who delivered the samples to the laboratory were not examined by the prosecution to rule out the possibility of the samples being changed or tampered with. 13. 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 Rajastan v. Daulath Ram [AIR 1980 SC 1314] in Sasidharan (supra) this Court held that where sample changed several hands before reaching the Crl.A No.665 of 2011 7 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 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 (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] . 14. Since the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P7 Certificate of Chemical Analysis has no 8 Crl.A No.665 of 2011 evidentiary value. 15. 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. 16. 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] }. 17. 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. 18. The upshot of the above discussion is that the conviction Crl.A No.665 of 2011 9 and sentence 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 offences alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS