Ratheesh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 CRL.A NO. 2023 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED07.08.2008 IN SC 236/2008 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, PALAKKAD APPELLANT/ACCUSED: ``` ``` RATHEESH, S/O RAMAKRISHNAN, CHERUVANJIPARAMBU VEEDU,KATHAMPOTTA, MELARCODE, ALATHUR. ``` ``` BY ADV M.REVIKRISHNAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2023 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A. No. 2023 of 2008 --------------------------------------------- Dated this the 3[rd] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 07.08.2008, passed by the Additional Sessions Court, (Adhoc-I), Palakkad in Sessions Case No.236/2008, 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 term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.11.2006 at 5.30 p.m., the appellant/accused was found in possession of 3 litres of arrack in a 5 litre Can in front of one Chinnu’s house at Kathampotta in Melarcode Village of Alathur Taluk 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 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 ``` Crl.A.No.2023 of 2008 ``` ``` 3 ``` 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 6 and proved Exts. P1 to P5 and MO 1. 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 offence under Section 8(2) of the Abkari Act and was convicted him thereunder. 6. Heard Sri.P.Vijaya Bhanu, the learned Senior 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 that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. The learned counsel for the appellant further contended that the prosecution had not proved the date on which the sample was ``` Crl.A.No.2023 of 2008 ``` ``` 4 ``` forwarded to the laboratory as well as the person with whom the sample was forwarded. The alleged seizure was on 01.11.2006. The seizure mahazar was prepared by PW1, the Excise Preventive Officer, Alathur Excise Range. The prosecution has not given evidence as to the date on which the properties, including the samples, were produced before the Court. No property list was produced and marked. Ext.P4, the copy of the forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. The space for entering the name of the officer with whom the sample was forwarded is left vacant. The learned Magistrate who counter signed Ext.P4 has put his initials, but the date on which he made the initial is not available in it. The date on which the learned Magistrate put the initial, is highly relevant when the name of the official with whom the sample was forwarded was not recorded in the forwarding note. 8. While considering 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_ ``` Crl.A.No.2023 of 2008 ``` ``` 5 ``` _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 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.”_ 9. In the present case, neither the property Clerk nor the Excise official concerned was examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. The sample remained in the custody of the Property Clerk of the Court, the Excise official who received the sample from the Court, and Sri.P.S.Saju the Excise Guard who delivered the sample in the laboratory. The prosecution has not examined these officials. 10. 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 ``` Crl.A.No.2023 of 2008 ``` ``` 6 ``` same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 11. 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 when it reaches the laboratory is required to be established by the prosecution. 12. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , this Court had an 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. 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. 13. In **Sathi v. State of Kerala (2007 (1) ILR 718 (Ker.)** , this Court re-emphasized on the requirement of strict compliance with ``` Crl.A.No.2023 of 2008 ``` ``` 7 ``` 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 affirmed by a Division Bench of this Court in **Ravi v. State of Kerala (2011 (3) KLT 353)** . 14. In the instant case, the prosecution has failed to establish the tamper-proof despatch of the sample to the laboratory. The resultant conclusion is that Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 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. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was ``` Crl.A.No.2023 of 2008 ``` ``` 8 ``` 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]}.** 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- ``` K.BABU JUDGE ``` VPK