SAHADEVAN S/O. GANGADHARAN v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 1[ST] DAY OF JUNE 2022 / 11TH JYAISHTA, 1944 CRL.A NO. 933 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 892/2005 OF ADDITIONAL DISTRICT COURT (ADHOC) III, TRIVANDRUM CP 5/2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I,ATTINGAL ``` ## **`APPELLANT/ACCUSED:`** ``` SAHADEVAN S/O. GANGADHARAN, "ANISH BHAVAN", CHANTHEKKAD, CHERUVALAM, KALLARA VILLAGE, NEDUMANGADU TALUK. BY ADVS. G.P.SHINOD MANU V. RAM MOHAN.G. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA,REPRESENTED BY ITS PUBLIC PROSECUTOR AT HIGH COURT OF KERALA AT ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA S. SR.PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 01.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 933 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 24.04.2008, passed by the Additional Sessions Court (Fast Track-III), Thiruvananthapuram, in Sessions Case No.892/2005, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of 6 months and pay a fine of Rs. 1 Lakh. 2. The prosecution case is that on 11.02.2004 at 6.30 pm, the appellant/accused was found in possession of 3 litres of arrack at Venkittamukku 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 ``` CRL.A NO. 933 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** the Sessions Court 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. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P9 and MO1. 5. 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 adduce evidence, if any, he may have in support thereof. 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. ``` CRL.A NO. 933 OF 2008 ``` ..4.. 6. Heard Sri G.P. Shinod, 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 judgment of conviction and sentence on the following grounds:- - (i) The prosecution failed to establish the tamperproof despatch of the sample to the laboratory. - (ii) The prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected by the Excise Inspector, Vamanapuram Excise Range Office, PW4. It is alleged that on 11.02.2004 at about 6.30 pm, he arrested the accused from the place of occurrence along with the contraband substance. PW4 prepared Ext.P1 seizure mahazar at the scene of occurrence. The nature and ``` CRL.A NO. 933 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** description of the seal stated to have been affixed on the bottle containing the sample had not been narrated in Ext.P1 seizure mahazar. PW4 has not given evidence as to the nature and description of the seal used. 9. 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. 10. Ext.P8 is the copy of the forwarding note. In Ext.P8, the space meant for incorporating the sample seal is left vacant. The necessary inference is that the specimen of the seal was not forwarded to the Chemical Examiner’s Laboratory to enable the analyst to ascertain the genuineness of the sample. In the absence of evidence to show that the specimen of the seal was provided to the Chemical Examiner to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no ``` CRL.A NO. 933 OF 2008 ``` ..6.. evidentiary value can be attached to the Chemical Analysis Report [vide : **Rajamma v. State of Kerala** [2014(1) KLT 506]. In Ext.P8, the name of the person with whom the sample was forwarded has not been mentioned. In Ext.P8, the learned Magistrate did not mention the date on which he countersigned the same. This is more relevant particularly when the name of the official with whom the sample was sent for analysis is not mentioned. 11. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [ 2016 (4) KLT 718], 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, remained vacant in Ext.P9 copy of the forwarding note. This would give an ``` CRL.A NO. 933 OF 2008 ``` ..7.. 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. 12. The sample remained in the custody of the Property Clerk, the Excise official who received the sample from the Court and the Excise Guard by name ``` CRL.A NO. 933 OF 2008 ``` ..8.. Shri. Unnikrishnan, who supplied the sample in the laboratory. The prosecution has not examined these witnesses. The non-examination of these witnesses is fatal to the prosecution. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with while in the custody of the officials concerned. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR 1980 SC 1314]. 13. In the present case, since the prosecution failed to establish that the sample which was drawn at the scene of occurrence was actually subjected to analysis in the laboratory, Ext. P9 Certificate of Chemical Analysis has no evidentiary value. 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. The sample seized and that tested have to be co- ``` CRL.A NO. 933 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused.[vide: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **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 entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. ``` CRL.A NO. 933 OF 2008 ``` ..10.. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; (iv) He is set at liberty ; (v) Any amount deposited by the accused, as per the interim orders of this Court, shall be disbursed to him, as per law. Sd/- **K. BABU, JUDGE**