SASI v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 20[TH] DAY OF OCTOBER 2022 / 28TH ASWINA, 1944 CRL.A NO. 530 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 06.01.2007 IN SC 191/2004 OF ADDITIONAL DISTRICT COURT AND SESSIONS COURT, FAST TRACK (ADHOC), MAVELIKKARA ``` ## **`APPELLANT/ACCUSED:`** ``` SASI, AGED 41 YEARS, S/O VASU,THUNDATHIL, PADEETTATHIL VEEDU,, KUTTAMPEROOR MURI, MANNAR VILLAGE, CHENGANNUR TALUK. ``` ``` BY ADV SRI.R.VINOD ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.530 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 530 of 2007 --------------------------------------------- ## Dated this the 20[th] day of October, 2022 **JUDGMENT** Aggrieved by the judgment dated 06.01.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc), Mavelikkara in Sessions Case No.191 of 2004, the accused has preferred this appeal. The appellant/ accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that, on 17.10.2000, at 11.35 a.m., the accused was found transporting 2 litres of illicit arrack 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 made over to the trial Court. On the appearance of the accused charge was framed against him for the offence ``` Crl.A.No.530 of 2007 ``` ``` 3 ``` 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 4 and proved Exts. P1 to P7 and MO 1. 5. After the closure of the evidence on behalf of the prosecution, 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 55(a) of the Abkari Act and he was convicted thereunder. 6. Heard Sri. R.Vinod, 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 ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to ``` Crl.A.No.530 of 2007 ``` ``` 4 ``` analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (i) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. (ii) Ext.P1 seizure mahazar does not contain the nature and description of seal stated to have been affixed on the bottle containing the sample. (iii) There is no evidence to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory. 9. The alleged seizure was effected on 17.10.2000. The accused was produced before the Court on 17.10.2000 itself. The detecting officer failed to produce the properties including the sample on 17.10.2000. Ext.P6 property list shows that the sample was produced before the Court only on 19.10.2000. The explanation offered by the prosecution that the properties were received by the Court only on 19.10.2000 is no way satisfactory. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the ``` Crl.A.No.530 of 2007 ``` ``` 5 ``` question of delay in the production of properties a Division Bench of this Court held thus: - “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (emphasis supplied) 11. In **Ravi's case** (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 12. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 13. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. The detecting officer had drawn the sample at the scene of occurrence. Ext.P1 does not contain the nature and ``` Crl.A.No.530 of 2007 ``` ``` 6 ``` description of seal stated to have been affixed on the bottle containing the sample, he has not given evidence as to the nature of seal used. 14. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory for comparison. The requisition for sending the sample/ forwarding note which contains the specimen of the seal was not produced and marked. 15. 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. 16. 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. ``` Crl.A.No.530 of 2007 ``` ``` 7 ``` 17. In the instant case, the prosecution failed to show that the contraband seized at the scene of occurrence was subjected to chemical analysis. Therefore, Ext.P7 Certificate of Chemical Anlaysis has no evidentary 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. State of Kerala** [2007 (1) KHC 275]}. 20. 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 ``` Crl.A.No.530 of 2007 ``` ``` 8 ``` 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. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK