Raju @ Rajasekharan Nair v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 CRL.A NO. 333 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 241/2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE APPELLANT/ACCUSED: ``` ``` RAJU @ RAJASEKHARAN NAIR, AGED 1 YEARS S/O.RAGHAVAN NAIR, VADAKKEL HOUSE, KADAVOOR AMSOM, PUNNOOR DESOM, KOZHIKODE. BY ADVS. SRI.P.SANJAY SRI.A.PARVATHI MENON ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 333 OF 2007 ``` ..2.. ## **JUDGMENT** This appeal arises from the judgment dated 17.01.2007 passed by the Additional District and Sessions Court Fast Track (Adhoc - I), Kozhikode in Sessions Case No.241 of 2005. 2. The appellant/accused was convicted for the offence punishable under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rupees One Lakh. 3. The prosecution case is that on 25.06.2002, the accused was found in possession of two litres of illicit arrack in a plastic can in front of the residence of one Ashraf on the side of Kattippara-Thangalkunnur road in Kozhikode Taluk. 4. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before ``` CRL.A NO. 333 OF 2007 ``` ..3.. the Judicial First Class Magistrate – I, Thamarassery. The case was committed to the Sessions Court, Kozhikode from where it was made over to the trial court. On the appearance of the accused charge was framed against him for the aforesaid offence. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the Trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P7 and MO1. 6. After the closure of the evidence on behalf of the prosecution, 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 that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, he may have in support thereof. From the side of the defence DW1 was ``` CRL.A NO. 333 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** examined. The Trial Court, after hearing the arguments addressed from both sides, found that the accused is guilty of offence under Section 8(2) of the Abkari act and he was convited thereunder. The accused was sentenced to undergo rigorous imprisonment for a period one year and to pay a fine of Rs.1 lakh. 7. Heard Sri.P. Sanjay, the learned counsel appearing for the appellant/accused and Smt.S. Rekha, the learned Senior Public Prosecutor appearing for the respondent. 8. PW5, the Excise Preventive Officer of the Thamarassery Excise Range was on patrol duty on 25.06.2002. The excise team led by PW5 reached Kidavur at about 04.10 pm. They found the accused carrying a plastic can. He was intercepted by the Excise team. On verification, it was found that the plastic can contained two litres of illicit arrack. The accused was arrested. PW5 collected 180ml of liquid from the can and ``` CRL.A NO. 333 OF 2007 ``` ..5.. sealed the same to be used as sample. PW5 prepared Ext.P1 seizure mahazar. 9. PW1, an Excise Guard, who had accompanied PW5 in the search and seizure supported the prosecution version. PW3, an independent witness examined to prove the incident proper, did not support the prosecution. PW4 conducted investigation and submitted final report against the accused. 10. The learned counsel for the appellant raised the following contentions. - (i) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the chemical examiner. - (ii) The delay in bringing the sample from the Court to the laboratory has not been satisfactorily explained. - (iii) The inordinate delay in the analysis of the ``` CRL.A NO. 333 OF 2007 ``` ..6.. sample is fatal to the prosecution. 11. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been affixed on the sample. PW5, the Detecting Officer has not given evidence as to the nature of the seal used at the time of drawing the sample. In **Bhaskaran K. v. State of Kerala and another** [2020 KHC 5296] this Court held that, the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced. Ext.P6, copy of the forwardiong note and Ext.P7 certificate of chemical analysis show that the sample was forwarded from the Court to the laboratory on 05.07.2002. These documents further show that an Excise Guard by name Roy K. Paul received the sample from the Court. Ext.P7 certificate of chemical analysis shows that the sample reached the laboratory only on 26.08.2002. The custody of the sample during this ``` CRL.A NO. 333 OF 2007 ``` ..7.. interval has not been explained by the prosecution. 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.” 12. The sample remained in the custody of the property clerk of the Court and Shri. Roy K. Paul, the Excise official who received the sample from the Court and delivered the same to the Analyst. These two witnesses were not examined by the prosecution. Therefore, the prosecution failed to establish that the sample was sent to the Court from the Laboratory in a tamper-proof condition. This view is fortified by the ``` CRL.A NO. 333 OF 2007 ``` ..8.. decision of the Apex Court in State of **Rajsthan v. Daulat Ram** [AIR (1980) SC 1134]. Ext.P7 certificate of analysis further shows that though the sample reached the laboratory on 26.08.2002, the same was subjected to analysis only on 15.10.2003. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “6. Ext.P5 report of ana.lysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 13. The delay of more than one year in the analysis of the sample remains unexplained, the benefit of which must go to the accused. ``` CRL.A NO. 333 OF 2007 ``` ..9.. 14. In **Vijay Pande 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 corelated. 15. 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]). 16. 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. Resultantly, the accused is entitled to the ``` CRL.A NO. 333 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** benefit of doubt. 17. 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. The appellant/accused is therefore not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- **K. BABU, JUDGE** kkj