Satheesan v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 9[TH] DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 CRL.A NO. 759 OF 2007 AGAINST THE JUDGMENT DATED 23.03.2007 IN SC 336/2001 OF ADDITIONAL SESSIONS COURT FOR THE TRIAL OF ABKARI ACT CASES,NEYYATTINKARA ``` ``` IN CP 116/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS -II, NEYYATTINKARA ``` ## **`APPELLANT/ACCUSED:`** ``` SATHEESAN, S/O. SUDHAKARAN, KUNNUMPURATHU VEEDU, PANATHURA,PACHALLOOR DESOM, THIRUVALLAM VILLAGE, THIRUVANANTHAPURAM DIST. ``` ``` BY ADVS. R.T.PRADEEP V.VIJULAL ``` ## **`RESPONDENT/COMPLAINT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.759 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 759 of 2007 --------------------------------------------- Dated this the 9[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 23.03.2007, passed by the Additional Sessions Court (Trial of Abkari Act cases), Neyyattinkara in Sessions Case No.336/2001, the accused has preferred this appeal. The appellant/accused was convicted under Section 58 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 18.05.1999 at 8.00 a.m., the appellant/accused was found in possession of 500 ml of arrack in a bottle and a can containing 8 litres of arrack at Pachalloor Desom, Thiruvallom 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 58 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.759 of 2007 ``` ``` 3 ``` charge was framed against him for the offence punishable under Section 58 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 P9 and MOs 1 to 3. 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 adduce evidence, if any, he may have in support thereof. DW1 was examined and Ext.D1 was marked on the side of the defence. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. 6. Heard Sri.R.T.Pradeep, 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:- - (1) The prosecution failed to prove that the arrack ``` Crl.A.No.759 of 2007 ``` ``` 4 ``` allegedly recovered from the possession of the accused was sent to the laboratory for analysis. (2) The act of PW4, the Property Clerk of the Court concerned, drawing sample from the bulk quantity of the arrack produced before the Court has no sanction of law. Hence, Ext.P5 Certificate of Analysis obtained based on the said sample has no evidentiary value. 8. The seizure was effected on 18.05.1999 by PW3, the SI of police, Thiruvallom. The articles were produced before the Court on 19.05.1999. No specimen seal was produced before the Court at the time of production of the properties by the detecting officer, so as to ensure the genuineness of the contraband substance produced before the Court. PW4, the Property Clerk of the Court gave evidence that he had verified the seal on the property produced before the Court with the specimen seal incorporated in Ext.P9 forwarding note. 9. I have carefully gone through Ext.P9 which does not contain the specimen of the seal stated to have been used by the detecting officer. The space meant for affixing the specimen seal is left vacant. So the evidence of PW4, the Property Clerk of the Court is in no way credible to conclude that specimen seal was produced ``` Crl.A.No.759 of 2007 ``` ``` 5 ``` before the Court and he could ensure the genuineness of the sample produced before the Court. 10. 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. So, the necessary conclusion is that the prosecution primarily failed to establish that the contraband substance allegedly seized from the possession of the accused was actually produced before the Court. 11. Admittedly, no sample was drawn at the scene of occurrence by the detecting officer. PW4, the Property Clerk of the Court had drawn the sample from the bulk quantity of the liquor produced before the Court. 12. The learned counsel challenges the sanctity of the act of drawing the sample by the Property Clerk. Drawing the sample and sealing the same are acts within the exclusive province of the Excise official or the police official concerned. This Court had considered this question in **Baburaj v. State of Kerala [2021(6) KLT 416],** wherein it was 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 ``` Crl.A.No.759 of 2007 ``` ``` 6 ``` 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 (MANU/KE/3808/2018 : 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 (MANU/KE/1466/2020 : 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 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.” 13. In **Baburaj (supra)** this Court further held that as the course adopted in drawing the sample from the contraband substance is not a procedure established by law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn. The resultant conclusion is that Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 14. The learned counsel for the appellant further contended that the prosecution also failed to prove that the sample forwarded ``` Crl.A.No.759 of 2007 ``` ``` 7 ``` from Court eventually reached the Chemical Examiner’s Laboratory. He relied on the delay in bringing the sample to the laboratory after obtaining the same form the Court. PW4, the Property Clerk deposed that he had entrusted the sample on 29.05.1999 to Police Constable No.5247. Ext.P5 Certificate of Chemical Analysis shows that the sample reached the laboratory only on 02.06.1999. Police Constable No. 5247 was not examined as a witness to rule out the possibility of the sample being changed or tampered with. 15. 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. 16. 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 occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 17. In **Sasidharan v. State of Kerala (2007 (1) KLT 720)** , ``` Crl.A.No.759 of 2007 ``` ``` 8 ``` 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. 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 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)** . 18. In the present case, the prosecution failed to establish ``` Crl.A.No.759 of 2007 ``` ``` 9 ``` that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 19. The upshot of the above discussion is that the prosecution failed to connect the accused with the contraband substance seized. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. 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