Sathyavan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944** **CRL.A NO. 1411 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 598/2003 OF ADDITIONAL DISTRICT AND SESSIONS (ADHOC)COURT-I, KOLLAM** ## **APPELLANT/ACCUSED:** SATHYAVAN, S/O GOPALA KRISHNAN, PUTHOORETHU KIZHAKKATHIL FROM VALIYA VEETIL, KIZHAKKATHIL, MANAPPALLY THEKKUM MURI, PAVUMPA VILLAGE, KARUNAGAPPALLY TALUK,KOLLAM. BY ADV SRI.B.MOHAN LAL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY EXCISE RANGE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, KOLLAM, THROUGH THE PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1411 of 2008 2 K.BABU, J. -------------------------------------Criminal Appeal No.1411 of 2008 --------------------------------------Dated this the 27[th] day of October, 2022 ## JUDGMENT The appellant/accused challenges the judgment of conviction and sentence dated 24.06.2008 passed by the Additional District and Sessions (Adhoc) Court-I, Kollam in S.C.No.598/2003, whereby he was convicted under Section 55(b) 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 19.07.2001 at 12.30 p.m, the accused was found distilling illicit liquor at House No.X/345 of Thazhava Panchayath, 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(a), 55(b) and 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 Crl.A No.1411 of 2008 3 appearance of the accused, charges were framed against him for the offences punishable under Sections 55(a) and 55(i) 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 7 and proved Exts.P1 to P10 and MOs I to VII. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri. B.Mohan Lal, 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 Crl.A No.1411 of 2008 4 judgment of conviction and sentence on the ground that the prosecution failed to prove that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The detection was effected by the Assistant Excise Inspector, Excise Range, Karunagappally on 19.07.2001. 9. The learned counsel for the appellant relied on the following circumstances to contend that the contraband substance allegedly seized from the place of occurrence was not analysed in the Chemical Examiner's Laboratory: - (a) Exhibit P5 seizure mahazar does not contain the specimen of the seal used by the detecting officer. - (b) There is nothing to show that the specimen of the - seal was produced before the Court and forwarded to the Chemical Examiner's Laboratory. - (c) Forwarding note/requisition for sending sample was not produced and marked. Crl.A No.1411 of 2008 5 10. Exhibit P5 seizure mahazar, the contemporaneous document prepared to evidence seizure and arrest, 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 specimen of the seal was not produced before the Court to ensure the genuineness of the properties, including the sample, produced before the Court. Forwarding note/requisition for sending sample was also not produced and marked. 11. In Bhaskaran K. v. State of Kerala and another (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. 12. 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 Crl.A No.1411 of 2008 6 so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the chemical analysis report. 13. 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 tamperproof 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. 14. The sample remained in the custody of the property clerk of the Court and the Excise guard by name Subash Chandranpillai who delivered the same in the laboratory. Those officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. Nonexamination of those officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. It leads to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. This Crl.A No.1411 of 2008 7 view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 15. As the prosecution has not succeeded in proving that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical examiner's Laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 16. 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. 17. 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]}. 18. In the instant case, the prosecution was unable to Crl.A No.1411 of 2008 8 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. 19. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS