SANTHA D/O CHELLAMMA v. STATE EXCISE INSPECTOR, KAZHAKKOOTTAM EXCISE RANGE

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **CRL.A NO. 697 OF 2007** **AGAINST THE ORDER/JUDGMENT IN SC 1573/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), TRIVANDRUM CP 15/2004 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II,ATTINGAL** ## **APPELLANT/ACCUSED:** SANTHA D/O CHELLAMMA, ASHA BHAVAN,, AYIROOPPARA VILLAGE. BY ADV SRI.B.PREMNATH (E) ## **RESPONDENT/COMPLAINANT:** STATE EXCISE INSPECTOR, KAZHAKKOOTTAM EXCISE RANGE),, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No. 697 of 2007 2 ## **K.BABU, J** . -------------------------------------- Criminal Appeal No.697 of 2007 --------------------------------------Dated this the 24[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 04.04.2007, in S.C No.1573/2004, passed by the Additional District and Sessions Judge,(Fast Track Court-I) Thiruvananthapuram, which arose from Crime No.4 of 2002 of Kazhakuttom Excise Range, the accused has preferred this appeal. 2. The trial Court convicted the accused for the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act and sentenced her to undergo rigorous imprisonment for a period of 2 ½ years and pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 19.01.2002 at 4.40 p.m the appellant/accused was found in possession of 5 litres of arrack in a plastic Can on the western side of the Narikkal junction in Ayirooppara village. 4. After completing the investigation, final report 3 Crl.A No. 697 of 2007 was submitted against the accused for the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Attingal. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the trial Court. On the appearance of the accused charge was framed against her for the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she came to be tried by the trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P5 and MOs 1 & 2. 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. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce Crl.A No. 697 of 2007 4 evidence, if any, she may have in support thereof. On the side of the defence, DW1 was examined. The trial Court, after hearing the arguments addressed on both sides found the accused guilty of the offence under Section 55(a) r/w Section 8(2) of the Abkari Act and convicted her thereunder. The accused was sentenced to undergo rigorous imprisonment for a period of 2 ½ years and pay a fine of Rs.1,00,000/- under Section 55(a) r/w 8(2) of the Abkari Act. 7. Heard Sri.B.Premnath, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant/accused contended that the prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 9. The learned counsel for the appellant/accused relied on the following circumstances to establish his 5 Crl.A No. 697 of 2007 contentions:- a. Ext.P1, seizure mahazar does not contain the nature and description of the seal stated have been used by the detecting officer. b. No specimen seal was produced before the Court to ensure the genuineness of the sample produced. c. PW1, the detecting officer, has not given evidence as to the nature and description of the seal stated to have been used. 10. 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 of occurrence was the sample tested in the Chemical Examiner's laboratory. 11. A legal obligation is cast on the prosecution to prove that the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof 6 Crl.A No. 697 of 2007 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. 12. 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. Daulat 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 7 Crl.A No. 697 of 2007 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 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]. 13. 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. 14. In **Rajamma v. State of Kerala** [2014 (1) KLT 8 Crl.A No. 697 of 2007 506], this Court held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the Chemical Examiner for verification to ensure that the sample seal so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report _._ 15. I have carefully examined Ext.P1, seizure mahazar and the other contemporaneous documents produced by the detecting officer. Ext.P1, seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the sample by the detecting officer. The detecting officer has not given evidence as to the nature and description of the seal used by him. There is nothing to show that the specimen of the seal was produced before the Court and marked. Ext.P4, copy of the forwarding note, does not contain the description of the seal used. The space meant for incorporating the specimen seal is left unfilled. PW6, the property clerk 9 Crl.A No. 697 of 2007 of the Court has given evidence that she had forwarded the specimen seal to the laboratory. Her evidence is not reliable in view of the fact that the detecting officer has not produced the specimen seal before the Court. Prosecution failed to establish that the specimen seal was produced before the Court either at the time of production of the articles or along with Ext.P4, forwarding note. Ext.P5, the certificate of chemical analysis narrates that the seal on the bottle was intact and found tallying with the sample seal provided. In the absence of any convincing evidence to show that the sample seal was produced before the Court and forwarded to the Chemical Examiner's laboratory, the observation of the analyst in Ext.P5 to the effect that the seal on the bottle was intact and tallied with the sample seal is not acceptable. 16. Ext.P4, the copy of the forwarding note, does not contain the name of the person with whom the sample was forwarded to the Chemical Examiner's laboratory. The 10 Crl.A No. 697 of 2007 space meant for entering the name of the official with whom the sample was forwarded is also kept vacant. PW6, the property clerk of the Court, also failed to give evidence as to the official with whom the sample was forwarded to the Chemical Examiner's laboratory. Ext.P5, the certificate of chemical analysis shows that one V.J Santhosh Kumar, an excise guard, delivered the sample in the laboratory but, he was not examined as a witness. The resultant conclusion is that the prosecution failed to establish the chain of custody of the sample during its transit from the place of occurrence to the laboratory through the Court. 17. In **Vijay Pandey v. State of U.P.** (AIR 2019 SC 3569), the Apex Court held that mere production of the laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself. The sample seized and tested have to be corelated. 18. The resultant conclusion is that Ext.P5, Crl.A No. 697 of 2007 11 Certificate of Chemical Analysis has no evidentiary value. 19. The learned counsel for the appellant/accused further contended that the prosecution failed to establish the identity of the person who was found in possession of the contraband substance. According to the prosecution, the accused could not be arrested from the place of occurrence as no woman police constables were available. The prosecution has no case that the official witnesses had any previous acquaintance with the accused. No test identification parade was conducted in this case. 20. It is well settled that the substantive piece of evidence of identification of an accused is the evidence given by the witness during the trial. Where a witness identifies an accused, who is not known to her, in the Court, for the first time, her evidence is absolutely valueless unless there has been a previous test identification parade to test her power of observation (vide: **Jameel v. State of Maharashtra** [AIR Crl.A No. 697 of 2007 12 2007 SC 971], **Raja v. State by Inspector of Police** [AIR 2020 SC 254], **Kanan and Others v. State of Kerala** [AIR 1979 SC 1127], **State (Delhi Administration) v. V.C.Shukla and Another** [AIR 1980 SC 1382], **Mohanlal Gangaram Gehani** **v. State of Maharashtra** [AIR 1982 SC 839], **Mohd. Abdul Hafeez v. State of AP** [AIR 1983 SC 367]. 21. In the instant case, the prosecution has no case that the witnesses who identified the appellant had any opportunity to see her after the incident. They identified her in the Court after a long lapse of four years. This Court, hence, comes to the conclusion that the prosecution failed to establish the identity of the person who was allegedly possessing the contraband substance at the place of occurrence. 22. The prosecution was also unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 13 Crl.A No. 697 of 2007 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. The appellant/accused is, therefore, not guilty of the offence punishable under Section 55(a) r/w Section 8(2) of the Abkari Act. She is acquitted of the charges. She is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE rpk