Rajendran s/o Sreedharan v. The Excise Inspector, Alappuzha Excise Range

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 10[TH] DAY OF AUGUST 2022 / 19TH SRAVANA, 1944 CRL.A NO. 2909 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 393/2006 OF ADDITIONAL SESSIONS** **COURT (FAST TRACK-II), ALAPPUZHA** **CP 21/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ALAPPUZHA** ## **APPELLANT/ACCUSED:** RAJENDRAN,S/O SREEDHARAN, KOLOTHUVELY, KOMALAPURAM, WARD NO.2, ARYAD PANCHAYATH,, ALAPPUZHA. BY ADVS. SRI.S.SANTHOSH KUMAR SRI.S.VINODKUMAR ## **RESPONDENT/COMPLAINANT:** THE EXCISE INSPECTOR, ALAPPUZHA EXCISE RANGE, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2909 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2909 of 2008 --------------------------------------Dated this the 10[th] day of August, 2022 ## JUDGMENT Aggrieved by the judgment dated 20.11.2008, passed by the Additional Sessions Court (Fast Track-II), Alappuzha in S.C.No.393/2006, the appellant/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 21.09.2004 at 2.30 p.m, the accused was found in possession of 11 litres of Indian Made Foreign Liquor for sale at Aryad. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 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, charge was framed against him for the offence punishable under Crl.A No.2909 of 2008 3 Section 55(i) 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 P12 and MOs 1 and 2. 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 side of the defence, DW1 was examined and Exts.D1 to D6 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the accused for the aforesaid offence. 6. Heard Sri. S.Santhosh 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 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance Crl.A No.2909 of 2008 4 allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) Exhibit P2, the seizure mahazar, does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The various officials who handled the sample during its transit from the Court to the laboratory were not examined. 8. The alleged seizure was effected on 21.09.204. The detecting officer had prepared Ext.P2 seizure mahazar to evidence seizure of the contraband substance. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottles containing the sample. The specimen of the seal was also not produced before the Court at the time of production of the properties, including the sample. The detecting officer has also not given evidence as to the nature of the seal used at the time of drawing sample. Crl.A No.2909 of 2008 5 9. The properties, including the sample, were produced before the Judicial First Class Magistrate-II, Alappuzha on 21.09.2004. The properties were forwarded to the Judicial First Class Magistrate Court-I, Alappuzha. The Junior Superintendent of the Court on 22.09.2004 received the articles, including the sample. The sample remained in the custody of the property clerk of the Judicial First Class Magistrate Court-I on 04.11.2004. The bottles containing the sample were forwarded to the Chemical Examiner's Laboratory through an Excise Guard by name Abdul Salam. The change of custody of the sample during this period is evident from Ext.P4 property list and Ext.P12 Certificate of Chemical Analysis. None of these officials who handled the sample during its course of transit from the Court to the laboratory were not examined as witnesses. The omission on the part of the prosecution in not examining those witnesses is fatal. The prosecution failed to rule out the possibility of the sample being changed or tampered with. 10. 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 Crl.A No.2909 of 2008 6 ## the Chemical Examiner's laboratory. 11. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of 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 the contraband reaches the laboratory is required to be established by the prosecution. 12. 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. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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 Crl.A No.2909 of 2008 7 statutory formalities in the matter of sampling/sealing, etc., of the contraband to be sent for Chemical Examination. In Sathi's case (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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 13. 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. 14. In the instant case, the prosecution failed to show that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no Crl.A No.2909 of 2008 8 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 entered by the Court below overlooking these vital aspects of the Crl.A No.2909 of 2008 9 matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS