Sabu v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 10[TH] DAY OF NOVEMBER 2022 / 19TH KARTHIKA, 1944** **CRL.A NO. 729 OF 2007** **AGAINST THE JUDGMENT IN SC 74/2005 OF ADDITIONAL SESSIONS COURT** **(ADHOC-I), THODUPUZHA** ## **APPELLANT/ACCUSED:** SABU, S/O. SIVAN, PULIPARAMPIL VEETIL, KUZHIYANAL KARA, MUTTOM VILLAGE, THODUPUZHA, IDUKKI DISTRICT. BY ADV C.C.THOMAS (SR.) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, IDUKKI, BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S (SR.PUBLIC PROSECUTOR) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 10.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.729 of 2007 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.729 of 2007 --------------------------------------Dated this the 10[th] day of November, 2022 ## JUDGMENT Aggrieved by the judgment dated 02.04.2007, passed by the Additional Sessions Court (Adhoc-I), Thodupuzha in S.C.No.74/2005, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(i) 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 19.12.2002 at 6.45 p.m, the accused was found selling toddy at Kakkombu without any licence, in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) 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 Crl.A No.729 of 2007 3 the accused, charges were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P11 and MO1 series and MOs 2 to 5. 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. On the side of the defence, DW1 was examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri. C.C.Thomas, 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.729 of 2007 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 was subjected to analysis in the Chemical Examiner's laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) The inordinate delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution. - (b) The tamper-proof despatch of the sample to the laboratory has also not been established. 9. The alleged seizure was effected on 19.12.2002 by the Excise Inspector (PW1), Idukki Excise Range. Exhibit P5 property list would show that the properties, including the sample, were produced before the Court only on 23.12.2002, though PW1 stated that the properties were produced before the Court on the subsequent day after the seizure. The statement is inconsistent with the specific entry contained in Ext.P5, which shows that the Junior Superintendent of the Court received the properties, Crl.A No.729 of 2007 5 including the sample on 23.12.2002. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties before the Court, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. 11. The learned counsel for the appellant further relied on Crl.A No.729 of 2007 6 Kumaran v. State of Kerala [2016 (4) KLT 718], to contend that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory. The learned counsel submitted that in Ext.P6 forwarding note/requisition for sending sample the name of the Excise guard with whom the sample was forwarded to the laboratory is not mentioned. The Magistrate, who countersigned the same, did not mention the date on which he made his initial. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. 12. The sample remained in the custody of the property clerk of the Court and the Excise official who received the same from the Court. Those officials were not examined by the prosecution. While dealing with a similar fact situation, this Court in Kumaran (supra) , 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, Crl.A No.729 of 2007 7 remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that 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 tamperproof 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.” 13. Non-examination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. 14. Since the prosecution failed to establish that the Crl.A No.729 of 2007 8 contraband seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory, Ext.P8 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. 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 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 has miserably failed 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 Crl.A No.729 of 2007 9 ## evidence as discussed above. 18. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS