Raveendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 23[RD] DAY OF MAY 2022 / 2ND JYAISHTA, 1944** **CRL.A NO. 653 OF 2007** **AGAINST THE JUDGMENT CONVICTION AND SENTENCE IN S.C NO.1095/2005 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT NO.II, PALAKKAD, DATED 14.3.2007 APPELLANT/ACCUSED:** **RAVEENDRAN, S/O. KITTU, XIV/167, MOORKKSANKUNNU, PAYILOOR,KOLLENGODE.** **BY ADVS. P.VIJAYA BHANU (SR.) SMT.P.MAYA** **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **OTHER PRESENT:** **SMT. REKHA.S (SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.653 of 2007** **2** ## **`JUDGMENT`** ## **`Dated this the 23[rd] day of May, 2022`** ``` This appeal is directed against the judgment dated 14.03.2007 in S.C.No.1095/2005 on the file of the Additional Sessions Court, (Fast Track Court No.II), Palakkad, which arose from Crime No.17 of 2003 of Nemmara Excise Range. The appellant is the sole accused in the crime. ``` ``` 2. By the impugned judgment, the appellant was convicted for the offence punishable under Section 55(a) read with Section 8(2)of the Abkari Act. He was sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.1,00,000/-. ``` ``` 3. The prosecution case is that on 28.11.2003 at about 5.30 p.m., the appellant/accused was found in possession of 3 litres of arrack in a 10 litre can at Kallattukulambu in Elavancherry Village of Chittur Taluk. ``` ``` 4.After completing the investigation, final report ``` **CRL.A.No.653 of 2007** **3** ``` was submitted against the appellant 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 Section 55(a) read with 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. ``` ``` 5.The prosecution examined PWs1 to 7 and proved Exts.P1 to P8 and MO1. ``` ``` 6.After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C was recorded. He pleaded total 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 ``` **CRL.A.No.653 of 2007** **4** ``` appellant for the aforesaid offence. ``` ``` 7.Heard Sri.P.VijayaBhanu, the learned Senior counsel appearing for the appellant and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. ``` ``` 8.PW2, a Preventive Officer attached to Nemmara Excise Range was on patrol duty on 28.11.2003, at 5.30 p.m, the Excise team led by PW2, found the accused carrying a white Can. On verification, the Excise team found that the Can in the possession of the accused contained 3 litres of illicit arrack. The accused was arrested from the scene. PW2 collected 300ml of arrack in a bottle and sealed. He prepared Ext.P2 seizure mahazar. PW3, the Excise Guard, who had accompanied PW2 supported the prosecution version. PWs 4 to 6, the independent witnesses did not support the prosecution. PW7 conducted the investigation and submitted final report. ``` ``` 9.The learned counsel for the appellant contended that the prosecution failed to establish the link connecting ``` **CRL.A.No.653 of 2007** **5** ``` the accused with the contraband allegedly seized from the place of occurrence. The learned counsel contended that strict compliance of the rigors of the statute and insistence on link evidence is required to establish a charge alleging offence punishable under the Abkari Act. ``` ``` 10. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer is not mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note containing the specimen seal was prepared and forwarded to the Chemical Examiner’s laboratory. ``` ``` 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 ``` **CRL.A.No.653 of 2007** **6** ``` 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 it was 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 the contraband 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 ``` **CRL.A.No.653 of 2007** **7** ``` 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 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. InBhaskaran v. State of Kerala (2020 KHC 5296), this Court held that the nature of the ``` **CRL.A.No.653 of 2007** **8** ``` 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. ``` ``` 16. In the instant case, this Court noticed the following deficiencies in the prosecution evidence:- ``` - `(a) Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.` - `(b) The detecting officer has not given evidence as to the nature and description of the seal used by him.` - `(c) Though the sample was forwarded from the Court` - `on 06.02.2004, it reached the laboratory only on` **CRL.A.No.653 of 2007** **9** ``` 10.02.2004. Prosecution has not offered any explanation for the custody of the sample during this interval. ``` - `(d) The sample remained in the custody of the property clerk of the Court, the official who received the sample from the Court for delivering the same to the laboratory and the Excise guard, who delivered the sample on 10.02.2004 in the laboratory. None of these officials were examined by the prosecution.` ``` 17. The resultant conclusion is that Ext.P8, Certificate of Chemical Analysis has no evidentiary value to connect the accused with the contraband substance seized. ``` ``` 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 ``` ``` 19. The upshot of the above discussion is that the ``` **CRL.A.No.653 of 2007** **10** ``` conviction entered by the Court below overlooking those vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is therefore, not guilty of the offence punishable under Section 55(a) read with Section 8(2) of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. ``` ``` The appeal is allowed as above. ``` ``` Sd/- K.BABU Judge ``` ``` NR/23/05/2022 ```