Sadanandhan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 19[TH] DAY OF MAY 2022 / 29TH VAISAKHA, 1944 CRL.A NO. 267 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 256/2005 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI** **APPELLANT/ACCUSED:** **SADANANDHAN AGED 61 YEARS S/O. RAGHAVAN, THOTTAPURATH VEEDU, KURUMBALANGODE, KAVALAPPURA DESOM, NILAMBUR TALUK, MALAPPURAM DISTRICT. BY ADV SRI.DEVIDAS.U.K** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE EXCISE RANGE OFFICER, NILAMBUR THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.G.P)** THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 267 of 2007 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.267 of 2007 --------------------------------------Dated this the 19[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 11-01-2007, passed by the Additional Sessions Judge, Fast Track Court No.III(Adhoc), Manjeri in S.C No.256/2005, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act and sentenced him to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 23.01.2004 at about 06.00 p.m the accused was found carrying 2.5 litres of illicit arrack in a can through KavalapparaThudimutty Colony. The offence was detected by the Assistant Excise Inspector, Nilambur Excise Range. 4. After the completion of the investigation, Crl.A No. 267 of 2007 3 final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court, Nilambur. The case was committed to the Sessions Court, Manjeri 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 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 evidence of the prosecution consists of the oral evidence of PWs 1 to 6, Exts.P1 to P8 series and MO1. 6. After the closure of the evidence on behalf of the prosecution, the 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 to Crl.A No. 267 of 2007 4 adduce evidence, if any, he may have in support thereof. 7. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.100,000/- under Section 8(2) of the Abkari Act. 8. Heard Sri.U.K. Devidas, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 9. The learned counsel for the accused relied on the following circumstances to challenge the findings of the trial Court. i) The prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused eventually reached the 5 Crl.A No. 267 of 2007 Chemical Examiner's Laboratory. ii) The inordinate delay in examination of the sample in the laboratory is fatal to the prosecution case. 10. The learned Public Prosecutor, contended that the prosecution could establish the charge against the accused. 11. The Assistant Excise Inspector, Nilambur Excise Range (PW5) was on patrol duty on 23.01.2004. At about 6.p.m, when the Excise team led by PW5 reached Kavalappara-Harijan Colony road, they found the accused carrying a white plastic can. They apprehended the accused and found that the can in possession of the accused contained illicit arrack. He collected 200 ml of illicit arrack from the can and sealed the same to be used as sample. He prepared Ext.P2 Mahazar. The accused was arrested from the spot. 12. PW2, a Preventive Officer, attached to the Excise Range Office, Nilambur, who had accompanied PW5 6 Crl.A No. 267 of 2007 in the patrol duty also supported the prosecution case. The accused was produced before PW6, the Excise Inspector, Nilambur Excise Range, who conducted investigation and submitted final report in the matter. 13. The learned counsel for the accused contended that the prosecution failed to establish the link evidence to ensure that the sample allegedly drawn at the scene of occurrence was actually subjected to chemical analysis in the laboratory. The learned counsel submitted that non-examination of the officials, who handled the sample during different intervals after the alleged seizure, is fatal to the prosecution in establishing the genuineness of the sample analysed in the laboratory. The property clerk of the Court received the sample on 24.01.2004. It remained in the custody of the property clerk till 28.01.2004. The sample was forwarded to the laboratory through an Excise Official by name Biju P Abraham who delivered the same in the Chemical Examiner's Crl.A No. 267 of 2007 7 Laboratory. The property clerk of the Court, the official who received the sample from the Court and the official who delivered the sample in the laboratory were not examined by the prosecution. 14. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. The inevitable consequence of the non-examination of the officials, who handled the sample during its transit from the place of seizure to the laboratory through the Court, is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. [See: **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314), **Valsala v. State of Kerala** (1993 KHC 798), **Sathi v. State of Kerala** (2007 (1) KHC 778)]. 8 Crl.A No. 267 of 2007 15. Mere production of the 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 [See: **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569)]. 16. The learned counsel for the appellant/accused further submitted that there is inordinate delay in examination of the sample in the laboratory. Ex.P8 certificate of chemical analysis shows that the sample reached the laboratory on 28.01.2004 which was subjected to analysis only on 09.09.2004. While dealing with the question of delay in analysis of the sample this Court in **Krishnadas v.State of Kerala** held as follows: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was Crl.A No. 267 of 2007 9 taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 17. The delay of nine months in the analysis of sample remains unexplained, the benefit of which must go to the accused. 18. 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. 19. In the instant case, the prosecution failed 10 Crl.A No. 267 of 2007 to establish the required evidence to ensure that the contraband substance allegedly recovered from the place of occurrence was actually analysed in the Chemical Examiner's Laboratory. The resultant conclusion is that the appellant/accused is entitled to the benefit of doubt. The accused is, therefore found not guilty of the offence punishable under Section 8 (2) of the Abkari Act and he is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk