Ramani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **CRL.A NO. 2289 OF 2008** **AGAINST THE JUDGMENT IN SC 221/2008 OF ADDITIONAL SESSIONS COURT** **(ADHOC-III), (FAST TRACK COURT-III), PALAKKAD** ## **APPELLANT/ACCUSED:** RAMANI, W/O.SUNDARAN ALIAS KARUPPAN, ADAKKATUTHODI, KAYILIYAD, CHALAVARA, OTTAPALAM. BY ADV SRI.P.K.MOHANAN(PALAKKAD) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2289 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2289 of 2008 --------------------------------------Dated this the 24[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 15.09.2008, passed by the Additional Sessions Judge Adhoc-III (Fast Track Court-III), Palakkad in S.C.No.221/2008, the accused has preferred this appeal. The appellant was convicted under Section 8(2) 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 28.08.2006, the accused was found in possession of 5 litres of illicit arrack at Kayiliyad desom in Chalavara Village, Ottappalam Taluk. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Ottappalam. The case was committed to the Sessions Court, Palakkad from where it was made over to the Trial Crl.A No.2289 of 2008 3 Court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MO1 . 5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. After hearing the arguments addressed from both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. P.K.Mohanan, 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 contended Crl.A No.2289 of 2008 4 that the prosecution has not succeeded in proving that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. The learned counsel for the appellant further contended that the prosecution failed to establish the chain of custody of the contraband during its transit from the place of occurrence to the laboratory through the Court. 8. This Court in Baburaj v. State of Kerala [2021 (6) KLT 416] held that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 9. In State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314) the Apex 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. Crl.A No.2289 of 2008 5 10. In the present case, the sample was produced before the Court on 28.08.2006. It remained in the custody of the property clerk of the Court. Exhibit P5, the copy of the forwarding note is silent as to the person with whom the sample was forwarded to the Chemical Examiner's laboratory. Exhibit P8, the certificate of chemical analysis shows that as per letter dated 29.09.2006 the sample was forwarded to the Chemical Examiner's laboratory by the Jurisdictional Magistrate concerned. Exhibit P8 further shows that the sample reached the laboratory only on 30.09.2006. The sample was delivered in the laboratory by an Excise guard by name Sajimon.M.K. Exhibit P5 does not show the date on which the Excise official concerned received the sample from the Court. The necessary inference is that the official concerned received the sample on 29.09.2006. However, it reached the laboratory only on 30.09.2006. The property clerk of the Court and the official 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. 11. In Ext.P5 the space meant to mention the name of the Crl.A No.2289 of 2008 6 person with whom the sample was forwarded to the Chemical Examiner remained vacant. Though the learned Magistrate made his initial in Ext.P5, he has not put the date on which he made his initial. In fact, there is nothing to ascertain as to who received the sample from the Court. In such a situation, the prosecution ought to have examined the property clerk of the Court or the Excise official concerned to prove the tamper-proof despatch of the sample to the laboratory. ## 12. While dealing with a similar fact situation this Court in Kumaran v. State of Kerala [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Crl.A No.2289 of 2008 7 Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the - tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 13. In the instant case, the omission on the part of the prosecution to examine those officials who handled the sample leads to the conclusion that the prosecution failed to prove the tamper-proof despatch of the sample to the Chemical Examiner's laboratory. 14. Though the sample was received in the laboratory on 30.09.2006 it was analysed only on 22.05.2007. The delay in the analysis of the sample has also not been satisfactorily explained. 15. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] Crl.A No.2289 of 2008 8 ## held as follows: “6. Ext.P5 report of analysis 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.” In the instant case, the delay of almost 8 months in the analysis of the sample remained unexplained, the benefit of which must go to the accused. 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. 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 Crl.A No.2289 of 2008 9 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]}. 18. 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. 19. 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. She is acquitted of the charge. She is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS