SANTHAMMA v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 31[ST] DAY OF MAY 2022 / 10TH JYAISHTA, 1944 CRL.A NO. 2103 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 29.08.2022 IN SC 1140/2003 OF PRINCIPAL ASSISTANT SESSIONS COURT, KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` SANTHAMMA, W/O BALAKRISHNAN,KOTTAPPURATHU VEEDU,, AMBALATHUMBHAGOM MURI, PORUVAZHY VILLAGE,, KUNNATHOOR TALUK. ``` ``` BY ADV C.RAJENDRAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY EXCISE INSPECTOR, SASTHAMOTTA RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2103 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2103 of 2008 --------------------------------------------- Dated this the 31[st] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 29.08.2008, passed by the Principal Assistant Sessions Court, Kollam in Sessions Case No.1140/2003, 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 13.05.1998 at 11.30 a.m., the accused was found in possession of 3.5 litres of illicit arrack in 35 plastic packets, each containing 100 ml at Ambalathumbhagom in Poruvazhi 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.2103 of 2008 ``` ``` 3 ``` charge was framed against her for the offence punishable under 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. 4. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P5 and MO1 series. 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. 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 evidence, if any, she may have in support thereof. DW1 was examined on the side of defence. 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 her thereunder. 6. Heard Sri.C.Rajendran,, 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/accused challenged the judgment of conviction and sentence on the ground ``` Crl.A.No.2103 of 2008 ``` ``` 4 ``` that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. 8. The seizure was effected on 13.05.1998 at 11.30 a.m. The appellant/accused was arrested from the spot, and she was produced before the Court on 13.05.1998 itself. The bottle containing the sample was not produced on 13.05.1998. Ext.P4 property list shows that the bottle containing the sample reached the Court only on 14.05.1998. PW7, the Property Clerk also gave evidence that the property reached the Court only on 14.05.1998. The prosecution has not offered any explanation as to the delay in bringing the sample to the Court, though the accused was produced before the Court on 13.05.1998 itself. 9. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. The prosecution had not adduced evidence to show that the specimen seal was produced before the Court and forwarded to the laboratory. 10. The forwarding note/requisition for sending the sample to the laboratory was not produced and marked. PW7, the Property ``` Crl.A.No.2103 of 2008 ``` ``` 5 ``` Clerk admitted in her cross-examination that she had no idea about the impression of the seal on the bottle containing the sample, which was forwarded to the laboratory. She further deposed that there is no evidence to show the name of the officer with whom the sample was forwarded to the laboratory. According to PW7, the sample was handed over to an Excise official on 10.06.1998. Ext.P5, Certificate of Chemical Analysis shows that the Excise Guard by name Baby John delivered the sample in the laboratory on 11.06.1998. Sri.Baby John was not examined as a witness to rule out the possibility of the sample being changed or tampered with. 11. 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. 12. 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 condition. The chain of custody of the contraband commencing from the place of ``` Crl.A.No.2103 of 2008 ``` ``` 6 ``` occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 13. 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 tamper-proof condition. Relying on **State of Rajasthan v. Daulath Ram (1980 KLT OnLine 1025 (SC) : 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 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 ``` Crl.A.No.2103 of 2008 ``` ``` 7 ``` 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).** 14. 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. 15. In **Rajamma v. State of Kerala (2014 (1) KLT 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. 16. In **Ramachandran v. State of Kerala (2021 (1) KLT 793)** while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper- ``` Crl.A.No.2103 of 2008 ``` ``` 8 ``` proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 17. In the present case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 18. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 19. 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.** ``` Crl.A.No.2103 of 2008 ``` ``` 9 ``` **State of Kerala** [2007 (1) KHC 275]}. 20. 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. 21. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. She is set at liberty. The appeal is allowed as above. Sd/- ``` K.BABU JUDGE ``` VPK