Sasidharan Nair v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 20[TH] DAY OF DECEMBER 2022 / 29TH AGRAHAYANA, 1944 CRL.A NO. 1565 OF 2007 ``` ``` AGAINST THE JUDGMENT SC 498/2006 OF THE ADDITIONAL DISTRICT AND COURT (ADHOC)III, PATHANAMTHITTA ``` ## **`APPELLANT/ACCUSED:`** ``` SASIDHARAN NAIR, ATHIRALAYAM VEEDU, PUTHUMALA, EZHAMKULAM VADAKKU, MURI, EZHAMKULAM VILLAGE. ``` ``` BY ADV SRI.V.PHILIP MATHEW ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADVS. SMT.REKHA,GP SRI.RAJESH A., SPL.GP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 20.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1565 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------Crl.A No. 1565 of 2007 --------------------------------------------- Dated this the 20[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 17.08.2007, passed by the Additional District & Sessions Court, (Adhoc) Fast Track Court-III, Pathanamthitta in Sessions Case No.498 of 2006, the accused has preferred this appeal. The appellant/ accused was convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.04.2004 at 11.15 p.m. the appellant was found in possession of 8 litres of illicit arrack in a 10 litre jerry can and the utensils and implements intended for the purpose of brewing arrack in northern side of his house by name Athiralayam bearing No.1/490 of Ezhamkulam in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from ``` Crl.A.No.1565 of 2007 ``` ``` 3 ``` where it was made over to the trial Court. On the appearance of the accused charges were framed against him for the offences punishable under Sections 55(g) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts. P1 to P12, MO 1, MO 2 to 3 series and MOs 4 to 5. 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. DW1 was examined on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Sections 55(g) and 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.V.Philip Mathews, 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:- ``` Crl.A.No.1565 of 2007 ``` ``` 4 ``` (1) The arrest as pleaded by the prosecution is doubtful. (2) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The alleged seizure was effected on 25.04.2004. The prosecution alleges that the accused was arrested along with the contraband substance and other utensils used for the distillation of illicit arrack. The learned counsel for the appellant relying on the presence of crime number in Ext.P5 arrest memo contended that the factum of arrest is doubtful. Ext.P5, arrest memo contains the number of crime registered against the appellant. The prosecution has not offered any explanation for the presence of crime number in Ext.P5, arrest memo. 9. While dealing with a similar fact situation in ## **Santhosh v. State of Kerala [2021 (5) KHC 214],** this Court held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information ``` Crl.A.No.1565 of 2007 ``` ``` 5 ``` report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : **Karunakar Bindhani v. State of Kerala (2016 KHC 758 : 2017(1) KLD 48)** and **Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)** ].” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P5 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant further contended that the prosecution has failed to establish that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 12. The learned counsel relied on the following circumstances to substantiate his contentions: (a) The contemporaneous documents ``` Crl.A.No.1565 of 2007 ``` ``` 6 ``` prepared at the scene of occurrence do not contain the specimen of seal stated to have been affixed on the bottle containing the sample. (b) The specimen of the seal was not produced before the Court at the time of production of the properties including the sample. - (c) Forwarding note/requisition for sending the sample has not been produced and marked. - (d) The custody of the sample during the interregnum from 04.05.2004 to 10.06.2004 has not been explained by the prosecution. 13. None of the contemporaneous document prepared at the scene of occurrence where the sample was drawn, the detecting officer had narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was not produced before the Court at the time of production of the properties including the sample. 14. Forwarding note/requisition for sending the sample was not produced and marked. There is nothing to show that ``` Crl.A.No.1565 of 2007 ``` ``` 7 ``` the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison so as to ensure the genuineness of the sample produced for analysis. 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. 17. 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-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to ``` Crl.A.No.1565 of 2007 ``` ``` 8 ``` show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 18. It is further contended that the prosecution has not explained the custody of the sample during the interregnum from 04.05.2004 to 10.06.2004. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P11 Certificate of Chemical Analaysis shows that sample was forwarded as per letter dated 04.05.2004 of the Judicial First Class Magistrate Court, Adoor. Ext.P11, further shows that the bottle containing the sample reached the laboratory only on 10.06.2004. The prosecution has not given evidence as to the custody of the sample during the interregnum from 04.05.2004 to 10.06.2004. From the materials placed on record, it is to be inferred that the sample was taken from the Court by the Excise official concerned on 04.05.2004 and the same was delivered in the laboratory only on 10.06.2004. 19. While dealing with a similar fact situation, this Court in _**Viswanadhan v. State of Kerala**_ [2016 (3) KHC 38] held thus: “ _Unless it is proved by the prosecution that the_ ``` Crl.A.No.1565 of 2007 ``` ``` 9 ``` _article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ 20. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamperproof condition. 21. In the present case, the Property Clerk of the Court and the Police Constable who delivered the sample before the Court were not examined as witnesses. The non-examination of those officials would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. ``` Crl.A.No.1565 of 2007 ``` ``` 10 ``` 22. The prosecution failed to establish that the contraband seized at the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 23. 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. 24. 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]}. 25. In the instant case, the prosecution was unable to ``` Crl.A.No.1565 of 2007 ``` ``` 11 ``` 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. 26. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK