Raveendran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 28[TH] DAY OF SEPTEMBER 2022 / 6TH ASWINA, 1944** **CRL.A NO. 984 OF 2008** **AGAINST THE JUDGMENT IN SC 649/2006 OF ADDITIONAL SESSIONS COURT** **FAST TRACK (ADHOC-II), KOZHIKODE** ## **APPELLANT/ACCUSED:** RAVEENDRAN, VARAYARAMKANDY HOUSE, NADERI AMSOM, MARUTHUR DESOM, KOZHIKODE DISTRICT. BY ADV SRI.SANTHARAM.P ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S, (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.984 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.984 of 2008 --------------------------------------Dated this the 28[th] day of September, 2022 ## JUDGMENT Aggrieved by the judgment dated 01.04.2008, passed by the Additional District and Sessions Court, Fast Track (Ad hoc-II), Kozhikode in S.C.No.649/2006, the appellant/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 08.10.2003 at 6.00 p.m, the accused was found in possession of 1 ½ litres of arrack in a can at Marathur 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 Crl.A No.984 of 2008 3 made over to the Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under 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 4 and proved Exts.P1 to P5 and MO1. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. Santharam.P, 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 challenged the Crl.A No.984 of 2008 4 judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) The nature and description of the seal stated to have been affixed on the bottle containing the sample has not been described in Ext.P1 seizure mahazar. - (b) There is nothing to show that the specimen of the seal was produced before the Court along with the - sample to ensure its genuineness. - (c) The custody of the sample during the period from - 09.10.2003 to 10.10.2003 has not been satisfactorily explained by the prosecution. 9. The alleged seizure was effected on 08.10.2003. The detecting officer (PW1) had prepared Ext.P1 seizure mahazar evidencing seizure and arrest. In Ext.P1 seizure mahazar there is Crl.A No.984 of 2008 5 no mention of the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. There is no evidence to show that the specimen of the seal was produced before the Court at the time of production of the sample to ensure its genuineness. 10. In Bhaskaran K. v. State of Kerala and another (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. 11. Exhibit P4 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 09.10.2003 of the Judicial First Class Magistrate, Koyilandy. The sample reached the laboratory on 10.10.2003. It was delivered by Sri.M.K.Chandran, the Excise Guard. Sri.M.K.Chandran was examined as PW2. He has not given evidence as to the custody of the sample from 09.10.2003 to 10.10.2003 after the same was obtained from the Court. In the absence of any evidence as to the Crl.A No.984 of 2008 6 tamper-proof handling of the sample during its transit from the Court to the laboratory, it is to be inferred that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 12. 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. 13. In the present case, the prosecution failed to establish the link evidence to ensure that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Since the prosecution has not succeeded in proving that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. 14. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex Crl.A No.984 of 2008 7 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. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 17. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, Crl.A No.984 of 2008 8 the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS