Raju s/o Madhavan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, 1944** **CRL.A NO. 757 OF 2007** **AGAINST THE JUDGMENT IN S.C.No.927/2004 OF ADDITIONAL DISTRICT** **COURT (ADHOC)-II, ALAPPUZHA** **C.P.No.165/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS , HARIPPAD** ## **APPELLANT:** **RAJU S/O. MADHAVAN, KAREEKAPARAMBU VEEDU,, PALLANA MURI, THRIKUNNAPUZHA VILLAGE.** **BY ADV S.SHANAVAS KHAN** ## **RESPONDENT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY PUBLIC PROSECUTOR** **SMT.REKHA.S- SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.APPEAL NO.757 OF 2007** 2 **K.BABU, J** . ---------------------------------Criminal Appeal No.757 of 2007 ---------------------------------- **Dated this the 15[th ] day of June, 2022** ## **JUDGMENT** Aggrieved by the judgment dated 26.03.2007 passed by the Additional Sessions Judge, Fast track Court-II, Alappuzha in Sessions Case No.927/2004, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(a) 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 05.01.2001 at 8.30 am, the appellant/accused was found in possession of 1 litre of arrack in a plastic bottle at Kareeparambu in Thrikkunnapuzha panchayat 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 Sections 8(2) and 55(a) 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 charges were framed against him for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The **CRL.APPEAL NO.757 OF 2007** 3 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 6 and proved Exts.P1 to P7 and MOs 1 and 2. 5. 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 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 sides, found the accused guilty of the offences under Sections 8(2) and 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh under Sections 8(2) and 55(a) of the Abkari Act. 6. Heard Sri. S.Shanavas Khan, 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 substances **CRL.APPEAL NO.757 OF 2007** 4 allegedly recovered from the place of occurrence were subjected to analysis in the Chemical Examiner's Laboratory. 8. The learned counsel relied on the following circumstances to substantiate this contentions:- 1. Ext.P1 mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. 2. The detecting officer has not given evidence as to the nature of the seal used. 3. The various officials who handled the sample during its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 05.01.2001. The offence was detected by PW1, the Preventive Officer attached to Excise Range Office, karthikapally. According to PW1, after seizure, sample was drawn from the scene of occurrence and the same was produced before the Court. 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. PW1 has not given any convincing evidence regarding the nature of seal used. 10. The sample was produced before the Court on 05.01.2001 itself. It remained in the custody of the property clerk till 17.02.2001. Ext.P7 shows that the sample was forwarded to **CRL.APPEAL NO.757 OF 2007** 5 the laboratory as per letter dated 17.02.2001. Ext.P7 further shows that the sample reached the laboratory on 19.02.2001. The sample was delivered to the laboratory by Sri. Sadasivan Pillai, an Excise guard. The sample remained in his custody from 17.02.2001 to 19.02.2001. In this circumstance, the prosecution ought to have examined the property clerk of the Court, and the Excise guard who delivered the sample in the laboratory to establish the tamper-proof despatch of the sample. The omission on the part of the prosecution would lead to the conclusion that it failed to rule out the possibility of the sample being changed or tampered with. 11. 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 the Chemical Examiner's Laboratory. 12. A legal obligation is cast on the prosecution to prove that 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 **CRL.APPEAL NO.757 OF 2007** 6 when it reaches the laboratory is required to be established by the prosecution. 13. 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** (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 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 S. 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 **CRL.APPEAL NO.757 OF 2007** 7 affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** (2011 (3) KLT 353). 14. 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. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 16. In the instant case, the prosecution failed to establish that the contraband seized from the place of occurrence was analyzed in the Chemical Examiner's Laboratory. Therefore, Ext.P7 has no evidentiary value. 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. Therefore, the appellant/accused is entitled to the benefit of doubt. **CRL.APPEAL NO.757 OF 2007** 8 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offences under Sections 8(2) and 55(a)of the Abkari Act. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU JUDGE** AJ