Santhilal v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944 CRL.A NO. 693 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 28.09.2007 IN SC 1098/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), THIRUVANANTHAPURAM CP 4/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS, VARKALA APPELLANT/ACCUSED: ``` ``` SANTHILAL, S/O. PUSHPANGADAN, OOTTUKUZHIYIL VEEDU, KURUVILIAKKODE DESOM,, VARKALA VILLAGE, CHIRAYINKIL. ``` ``` BY ADV R.T.PRADEEP ``` ## **`RESPONDENT:`** ``` THE STATE OF KERALA REPRESENTED BY THE DIRECTOR GENERAL OF PROSECUTION, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADVS. SRI.V.VIJULAL SMT. REKHA.S (SR.PP) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 30.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.693 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 693 of 2008 --------------------------------------------- Dated this the 30[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 28.09.2007, passed by the Additional District and Sessions Judge (Fast Track Court-I), Thiruvananthapuram in Sessions Case No.1098/2004, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of two years and to pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 13.03.2000 at 5.00 p.m. the accused was found in possession of 3.60 litres of arrack at Devi Kshetram-Pullannicode Ela situated on the northern side of Kariveettu Devi temple 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 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was ``` Crl.A.No.693 of 2008 ``` ``` 3 ``` made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under Section 55(a) 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 6 and proved Exts. P1 to P7 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 to 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 55(a) of the Abkari Act and was convicted thereunder. The accused was sentenced to undergo simple imprisonment for a term of two years and to pay a fine of Rs.1 Lakh under Section 55(a) of the Abkari Act. 6. Heard Sri. R.T.Pradeep, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public ``` Crl.A.No.693 of 2008 ``` ``` 4 ``` Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:- (1) The prosecution failed to establish that the contraband substance seized from the possession of the accused was produced before the Court. (2) The prosecution has also failed to prove that the sample subjected to analysis in the Chemical Examiner’s Laboratory was the very same substance recovered from the place of occurrence. 8. The seizure was effected by PW4, a Preventive Officer attached to the Excise Office Varkala. According to the prosecution, on 13.03.2003 around 5.00 p.m., the accused was found carrying a 5 litre can containing 3.60 litres of arrack near Karaveetu Devi temple. 9. PW4 effected the seizure. As per Ext.P4 seizure mahazar, no sample was drawn at the place of occurrence. The can containing illicit liquor was produced before the Court on the date of seizure itself. Ext.P4 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the can. PW4 has not given evidence as to the nature and ``` Crl.A.No.693 of 2008 ``` ``` 5 ``` description of the seal used by him. No specimen seal was produced before the Court along with MO1 can containing the liquor. In the absence of specimen seal, the Jurisdictional Court or the officer concerned in the Court was unable to ensure the genuineness of the contraband substance produced. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court {Vide: **Bhaskaran K. v. State of Kerala and another** (2020 KHC 5296), **Achuthan v. State of Kerala** [2016(1) KLD 391], **Krishnadas v. State of Kerala** (2019 KHC 191)}. 10. In the present case, the Excise Inspector, Varkala Range submitted Ext.P2 requisition requesting the Jurisdictional Court, the Judicial First Class Magistrate, Varkala, to draw sample from the bulk quantity of the liquor produced before the Court and forward the same to the Chemical Examiner’s Laboratory for examination. PW1, the Property Clerk of the Court deposed that as per the instructions of the learned Magistrate, he had drawn sample from MO1 containing the liquor allegedly seized from the place of ``` Crl.A.No.693 of 2008 ``` ``` 6 ``` occurrence and forwarded the same to the Chemical Examiner’s Laboratory. Drawing sample and sealing the same are acts within the exclusive province of the the Police officials or the Excise officials concerned. The act by which the Property Clerk of the Court had drawn the sample is under vehement challenge. This Court had an opportunity to consider the sanctity of the act of the Magistrate taking the sample from the contraband in **Baburaj v.** ## **State of Kerala [2021 (6) KLT 416].** ## 11. In **Baburaj (supra)** this Court held thus:- “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water- tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala (2019 (2) KLT 974), wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala (2020 (2) KLT 590), this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders ``` Crl.A.No.693 of 2008 ``` ``` 7 ``` to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 12. In **Baburaj v. State of Kerala (Supra)** , this Court further held that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, no evidentiary value can be given to the certificate of chemical analysis obtained based on the sample so drawn. 13. In the present case, the prosecution failed to establish that the liquor allegedly seized from the accused eventually reached the Court and further that the liquor collected from the bulk quantity was subjected to analysis in the Chemical Examiner’s Laboratory. 14. Ext.P7, the certificate of chemical analysis, shows that the sample was forwarded to the Chemical Examiner's Laboratory through Excise Guard by name Lalikuttan on 03.04.2000. He produced the sample only on 04.04.2000. The official who delivered the sample in the laboratory was not examined by the prosecution. Therefore, the prosecution also failed to establish the ``` Crl.A.No.693 of 2008 ``` ``` 8 ``` tamper proof despatch of the sample from the Court to the laboratory. Therefore, the prosecution failed to rule out the possibility of the sample being changed or tampered with, during its transit from the Court to the laboratory. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314]. In Daulat Ram (supra)** it was 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. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 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 ``` Crl.A.No.693 of 2008 ``` ``` 9 ``` evidence as discussed above. 17. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK