Rajappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 CRL.A NO. 2099 OF 2008** **AGAINST THE JUDGMENT IN SC 301/2006 OF ADDITIONAL SESSIONS COURT** **(ADHOC)-II, ALAPPUZHA** **CP 33/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS, RAMANKARY** ## **APPELLANT/ACCUSED:** RAJAPPAN, S/O PRABHAKARAN, VATTARACKAL VEEDU, VELIYANADU NORTH, VELIYANADU VILLAGE, KUTTANAD TALUK. BY ADV N.ASOK KUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE EXCISE INSPECTOR, KUTTANAD EXCISE RANGE-THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2099 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2099 of 2008 --------------------------------------Dated this the 1[st ] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 18.08.2008, passed by the Additional Sessions Court, (Fast Track Court-II), Alappuzha in S.C.No.301/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) 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 24.11.2001 at 11.15 a.m, the appellant/accused was found in possession of 800 ml of arrack near the Kanickassery bridge in Veliyanad village. 3. After completing the investigation, final report was submitted against the appellant 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. On the appearance of the accused, charge was framed against him for the offence punishable under Crl.A No.2099 of 2008 3 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. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P8 and MO1. 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. On the side of the defence DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. N.Ashok 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 challenged the judgment of conviction and sentence on the following grounds: - (i) The delay in the production of the articles, Crl.A No.2099 of 2008 4 including the sample, has not been satisfactorily explained by the prosecution. - (ii) The prosecution failed to establish that the bottle containing the sample was forwarded to the laboratory in a tamper-proof condition. - (iii) 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 contended that there is inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 24.11.2001. Exhibit P2, the property list, shows that the material objects were produced before the Court only on 26.11.2001. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. 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 Crl.A No.2099 of 2008 5 ## (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. ” (Emphasis supplied) 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 an explanation for the delay when there is delayed production of the property. 9. The prosecution has not offered any satisfactory explanation for the delay in producing the 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. 10. Ext.P6, the seizure mahazar, does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW5, the detecting officer, has not given evidence as to the nature and description of the seal used. 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. Crl.A No.2099 of 2008 6 11. The prosecution failed to prove that the specimen impression of the seal was forwarded to the Chemical Examiner's laboratory. Forwarding note/requisition for sending sample to the laboratory was not produced and marked. 12. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court 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. 13. In Ramachandran v. State of Kerala [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. 14. The sample remained in the custody of the property clerk of the Court, the official who received the bottle from the Court and Crl.A No.2099 of 2008 7 the Excise Guard who delivered the same to the laboratory. These witnesses were not examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 15. Yet another aspect that requires consideration is that though the sample was forwarded from the Court on 27.11.2001, the same reached the laboratory only on 29.11.2001. The prosecution has not offered any explanation as to the delay in bringing the sample to the laboratory after obtaining it 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.” Crl.A No.2099 of 2008 8 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 tamper-proof condition. 17. In the absence of any convincing evidence that the sample drawn at the scene of occurrence was subjected to analysis in the laboratory, Ext.P5, the 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. 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.2099 of 2008 9 20. 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. 21. 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