Rajesh @ Soman v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 1[ST] DAY OF MARCH 2024 / 11TH PHALGUNA, 1945 ``` ``` CRL.A NO. 1092 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 26.05.2009 IN SC NO.78 OF 2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA ``` ## **`APPELLANT:`** ``` RAJESH @ SOMAN ANJIILIMOOTTIL VEEDU, PAZHAYAKAVU, KIZHAKKAN, OTHARA MURI, ERAVIPEROOR VILLAGE, THIRUVALLA TALUK BY ADV SRI.NIREESH MATHEW ``` ## **`RESPONDENT:`** ``` STATE OF KERALA REPRESENTED BY SUB INSPECTOR OF POLICE, THIRUVALLA, PATHANAMTHITTA DIST.,, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` SRI.SUDHEER P P ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1092 OF 2009 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## CRL.A.No.1092 of 2009 --------------------------------------Dated this the 1[st ] day of March, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 26.05.2009, passed by the Additional District and Sessions Court (Adhoc) Fast Track Court-II, Pathanamthitta, in Sessions Case No.78/2006, 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 period of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 27.04.2004, at about 4.30 p.m., the appellant was found in possession of 11 litres of arrack at Iraviperoor in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the 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 ``` CRL.A NO. 1092 OF 2009 ``` ``` 3 ``` 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 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 4 and proved Exts.P1 to P8 and MOs. 1 and 2. 5. After the closure of prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellant/ accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the ``` CRL.A NO. 1092 OF 2009 ``` ``` 4 ``` prosecution failed to establish that the contraband 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) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. ii) The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory for comparison. Iii) The forwarding note was not produced and marked. iv) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 27.04.2004. The detecting officer had prepared seizure mahazar at the scene of occurrence which is marked as Ext.P1. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been used ``` CRL.A NO. 1092 OF 2009 ``` ``` 5 ``` by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison. Forwarding note was not produced and marked. 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 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. In Ramachandran v. State of Kerala [2021 (1) KLT 793) while dealing with a case in which forwarding ``` CRL.A NO. 1092 OF 2009 ``` ``` 6 ``` 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. 13. The properties including the sample were produced before the Court on 28.04.2004. The sample remained in the custody of the property clerk till 26.05.2004. It was forwarded to the Chemical Examiner's Laboratory as per letter dated 26.05.2004 of the Judicial Magistrate of First Class, Thiruvalla. It reached the laboratory only on 27.05.2004. The sample was delivered in the laboratory through a Police Constable (No.2344). The property clerk of the Court and the Police Constable who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 14. In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this Court had occasion to elucidate on the legal obligation cast ``` CRL.A NO. 1092 OF 2009 ``` ``` 7 ``` 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 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 re-emphasized 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 ``` CRL.A NO. 1092 OF 2009 ``` ``` 8 ``` of Kerala [2011 (3) KLT 353] . 15. In the instant case, the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 16. 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. 17. 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. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. ## The Criminal Appeal is allowed as above. Sd/- K. BABU JUDGE ``` saap ```