Retnakaran v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF FEBRUARY 2024 / 4TH PHALGUNA, 1945** **CRL.A NO. 891 OF 2009** **AGAINST THE JUDGMENT DATED 08.05.2009 IN SC NO.299 OF 2002 OF ADDITIONAL SESSIONS COURT, FAST TRACK (ADHOC)-IV,** **THIRUVANANTHAPURAM** ## **APPELLANT/ACCUSED:** **RETNAKARAN, S/O KUTTAN NADAR, KIZHAKKUVILAKATHU PUTHEN VEEDU, EDAKKODE DESOM, PALLICHAL VILLAGE, THIRUVANANTHAPURAM DISTRICT. BY ADV SRI.GOPAKUMAR R.THALIYAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.02.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.891 of 2009 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.891 of 2009 --------------------------------------- Dated this the 23[rd] day of February, 2024 ## JUDGMENT Aggrieved by the judgment dated 08.05.2009, passed by the Additional Sessions Court, Fast Track (ADHOC) No.IV, Thiruvananthapuram in S.C.No.299/2002, 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 28.06.2000 at 1.00 p.m, the accused was found in possession of a can containing 10 litres of illicit arrack at Karumam Desom in Nemom village 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, Crl.A No.891 of 2009 3 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 5 and proved Exts.P1 to P7 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 the learned counsel appearing for the appellant/accused 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 Crl.A No.891 of 2009 4 prosecution failed to establish that the contraband substance 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: - (i) Exhibit P1 seizure mahazar does not contain - the nature of the seal stated to have been affixed by the detecting officer on the can allegedly recovered from the possession of the accused. - (ii) The act of drawing sample by the property clerk of the Court as per the directions of the learned Magistrate has no sanction of law. 9. The alleged seizure was effected on 28.06.2000. The detecting officer allegedly seized a can containing 10 litres of illicit arrack. The nature of the seal stated to have been affixed on the can allegedly recovered from the possession of the accused at the scene of occurrence has not been narrated in the seizure mahazar (Ext.P1). The specimen of the seal was also not produced before Crl.A No.891 of 2009 5 the Court. He has not given evidence as to the nature of the seal used. 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. The learned counsel further challenges the act of drawing the sample by the property clerk. The detecting officer had not drawn sample at the scene of occurrence. He produced the can allegedly containing the arrack before the Court along with bottles for taking sample. PW4 the property clerk stated that she had drawn sample as per the directions of the learned Magistrate. No contemporaneous records were prepared to show that the learned Magistrate directed her to draw sample. The competence of the learned Magistrate to draw sample is also under challenge. 12. This Court had occasion to consider this question in Baburaj v. State of Kerala [2021 (6) KLT 416]. In Baburaj this Court Crl.A No.891 of 2009 6 held that drawing of sample by the property clerk from the bulk quantity of the arrack produced before the Court has no sanction of law and the genuineness of the sample forwarded to the Chemical Examiner's Laboratory from the sample drawn by the property clerk is doubtful. In Baburaj this Court observed thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” Crl.A No.891 of 2009 7 13. As the procedure adopted in drawing the sample by the property clerk has no sanction of law, the genuineness of the sample forwarded to the Chemical Examiner's laboratory is doubtful and therefore, no evidentiary value can be given to Ext.P5, Certificate of Chemical Analysis. Resultantly, the prosecution failed to establish the link connecting the accused with the contraband. 14. 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. 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 Crl.A No.891 of 2009 8 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, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS