Regunathan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 12[TH] DAY OF APRIL 2024 / 23RD CHAITHRA, 1946 CRL.A NO. 1773 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 05.08.2009 IN SC NO.140 OF 2008 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, PATHANAMTHITTA APPELLANT/S: ``` ``` REGUNATHAN, AGED 46 YEARS S/O.SUKUMARAN, KOTTARATHIL VEEDU, ARUVAPPULAM, VILLAGE, KOZENCHERRY TALUK,PATHANAMTHITTA DIST. BY ADV SRI.V.SETHUNATH ``` ## **`RESPONDENT/S:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 12.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1773 of 2009 2 ## **K. BABU, J** ------------------------------------------------- ## **Crl Appeal No.1773 of 2009** ------------------------------------------------Dated this the 12[th] day of April, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 05.08.2009 passed by the Additional District and Sessions Court (Adhoc), Fast Track Court No.II, Pathanamthitta in S.C.No. 140/2008, the appellant/accused No.1 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 12.11.2007 at 01.20 pm, the accused were found in possession of 2 litres of arrack at Melemannilpadi in Koodal in violation of the provisions of the Abkari Act. Crl.A.No.1773 of 2009 3 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 them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they 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 P10 and MOs. 1 to 5 5. After the closure of evidence on behalf of the prosecution, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and Crl.A.No.1773 of 2009 4 found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence punishable under Section 8(2) of the Abkari Act and convicted him thereunder. Accused No.2 was acquitted of the offence alleged. 6. Heard the learned counsel appearing for the appellant/accused No.1 and the learned 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 substance seized from the place of Crl.A.No.1773 of 2009 5 occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i)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. (ii)The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 12.11.2007. Ext.P1 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. Ext.P1 does not contain the specimen of the seal used by the detecting officer. He has also not produced the specimen of the seal before the Court at the time of production of properties Crl.A.No.1773 of 2009 6 before the Court and has not given evidence as to the nature of the seal used. 10. 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. 11. Exhibit P9 is the copy of the forwarding note. Exhibit P9 does not contain the name of the official with whom the sample was forwarded to the laboratory. The space meant for entering the name of the official with whom the sample was forwarded is left vacant in Ext. P9. The sample was received in the Court by the Junior Superintendent of the Court and remained in the custody of the Property Clerk till it was forwarded to the Chemical Crl.A.No.1773 of 2009 7 Examiner’s Laboratory. Ext. P10 Certificate of Chemical Analysis shows that the sample was delivered in the laboratory through a Police Constable No.2275. The Junior Superintendent of the Court, the Property Clerk, and the Police Constable 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. Non-examination of those officials who handled the sample during the course of its transit from the Court to the laboratory is fatal to the prosecution as prosecution failed to rule out the possibility of the sample being changed or tampered with. 12. 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 Crl.A.No.1773 of 2009 8 of occurrence was the sample tested in the Chemical Examiner's laboratory. 13. 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 tamperproof 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. 14. 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 tamperproof condition. Relying on **State of Rajasthan v.** Crl.A.No.1773 of 2009 9 **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. 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 Crl.A.No.1773 of 2009 10 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).** 15. In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. Therefore, Ext.P10 Certificate of Chemical Analysis has no evidentiary value. 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. Crl.A.No.1773 of 2009 11 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, accused No.1 is acquitted of the offence alleged. He is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to him as per law. The appeal is allowed as above. **Sd/-** **K. BABU JUDGE** kkj