Rajendran v. Excise Inspector & Anr.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 21[ST] DAY OF OCTOBER 2022 / 29TH ASWINA, 1944 CRL.A NO. 801 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 88/2002 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA CP 131/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I, ``` ## **`MAVELIKKARA`** ## **`APPELLANT:`** ``` RAJENDRAN KARAYAM MUTTATHU VEEDU,, PATTOOR MURI, NOORANADU VILLAGE,, MAVELIKARA, ALLEPPEY (DIST.) BY ADVS. SRI.M.K.HARIKUMAR SRI.SALIM V.S. ``` ## **`RESPONDENTS:`** ``` 1THE EXCISE INSPECTOR & ANOTHER MAVELIKARA. 2THE STATE OF KERALA REP.BY PUBLIC PROSECUTOR,, HIGH COURT OF KERALA AT ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 21.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 801 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 12.04.2007, passed by the Additional Sessions Court, Fast Track (Adhoc) Mavelikara in Sessions Case No.88/2002, the accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 29.05.1999 at 5.15 p.m., the accused was found transporting 750 ml of illicit arrack on the south of the landed property of Kuzhiyil Peedikayil Pappachan on the west of Iranikuzhi old bridge, at Nooranadu 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 Sections8(2) and 55(a) of the Abkari Act ``` CRL.A NO. 801 OF 2007 ``` ..3.. 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 punishable under Sections 8(2) and 55(a) 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 to 5 and proved Exts.P1 to P6 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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 ``` CRL.A NO. 801 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** sides, found the accused guilty of the offences under Sections 8(2) and 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri. Harikumar M.K., 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 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 relied on the following circumstances to substantiate his contentions:- - (i) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. ``` CRL.A NO. 801 OF 2007 ``` ..5.. - (ii) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (iii)The prosecution has not offered any explanation regarding the custody of the sample during the interregnum from 30.05.1999 to 02.06.1999. 9. The alleged seizure was effected on 29.05.1999. Ext.P4, the property list, shows that the properties including the sample were produced before the Court only on 01.06.1999. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of 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 ``` CRL.A NO. 801 OF 2007 ``` ..6.. 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. 11. 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. 12. According to the prosecution, at the scene of occurrence, the Detecting Officer had drawn sample from the bulk quantity of the arrack seized as per Ext.P1 seizure mahazar. Ext.P1 seizure mahazar does not ``` CRL.A NO. 801 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 13. There is nothing to show that the specimen of the seal was produced before the Court to ensure the genuineness of the sample. 14. There is also no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification. Forwarding note/requisition for sending sample was not produced and marked before the Court. 15. 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. 16. In **Rajamma v. State of Kerala** [2014 (1) KLT 506], this Court held that if the specimen of the seal ``` CRL.A NO. 801 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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. 17. 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 tamper-proof 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. 18. Yet another aspect that requires consideration is that the prosecution has not offered any explanation for the custdoy of the sample during the interregnum from ``` CRL.A NO. 801 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 30.05.1999 to 02.06.1999. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner’s Laboratory. Ext.P6 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per the letter dated 30.05.1999 of the JFMC, Mavelikkara. Ext.P6 would further show that the sample reached the laboratory only on 02.06.1999. In the absence of any contra evidence the necessary inference is that on 30.05.1999, the Excise Guard concerned received the sample from the Court whereas the same was delivered in the laboratory only on 02.06.1999. There is absolutely no explanation for the custody of the sample during this interregnum. Neither the property clerk of the Court nor the Excise Guard who delivered the sample in the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. ``` CRL.A NO. 801 OF 2007 ``` ..10.. 19. 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.” 20. 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, ``` CRL.A NO. 801 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 21. In the present case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 22. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. In the result, ## (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed ``` CRL.A NO. 801 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** against the accused is set aside ; (iii) The accused is acquitted of the offences alleged ; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj