Sebastian v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946 ``` ``` CRL.A NO. 1674 OF 2011 ``` ``` AGAINST THE JUDGMENT DATED 22.08.2011 IN SC NO.13 OF 2011 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-III),NORTH ``` ## **`PARAVUR`** ## **`APPELLANT/PETITIONER/ACCUSED:`** ``` SEBASTIAN, S/O VARGHESE, KALATHIPARAMBIL VEEDU, GOTHURUTHY DESOM, CHENDAMANGALAM VILLAGE, N. PARAVUR. ``` ``` BY ADVS. SRI.AMJAD ALI SRI.B.H.ANSIL SRI.MANSOOR.B.H. ``` ## **`RESPONDENT/COMPLAINANT/STATE:`** ``` STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, N. PARAVUR EXCISE RANGE, ERNAKULAM DISTRICT ``` ``` BY ADV. SRI.G.SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1674 of 2011 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1674 of 2011 --------------------------------------------- Dated this the 20[th] day of May, 2024 ## **JUDGMENT** Aggrieved by the judgment dated 22.08.2011, passed by the Additional District and Sessions Court (Adhoc-III), North Paravur in S.C.No. 13/2011, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of three months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 31.01.2007 at 12.30. pm, the Excise Inspector, North Paravur seized the accused while transporting 10 litres of arrack contained in a plastic cannas along the pathway from Thekkekkadavu bhagom 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 8(2) of the Abkari Act before the jurisdictional ``` Crl.A.No.1674 of 2011 ``` ``` 3 ``` 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 punishable under Section 8(2)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 P8, MO.1. 5. After the closure of 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 punishable under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard the learned counsel appearing for the ``` Crl.A.No.1674 of 2011 ``` ``` 4 ``` appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) The forwarding note/requisition for sending sample - was not produced and marked. (ii) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 31.01.2007. Ext.P1 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. The forwarding note which contains the specimen of the seal used has not been produced and marked. 10. In **Ramachandran v. State of Kerala (2021 (1)** ``` Crl.A.No.1674 of 2011 ``` ``` 5 ``` **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 show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 11. The sample was received in the Court by the Junior Superintendent of the Court and remained in the custody of the Property Clerk till it was forwarded to the Chemical Examiner’s Laboratory. Ext. P8 Certificate of Chemical Analysis shows that the sample was delivered in the laboratory through an Excise Guard by name Sri.K.R.Sunil. The Junior Superintendent of the Court, the property clerk, and the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials who handled the sample during the course of its transit from the Court to the ``` Crl.A.No.1674 of 2011 ``` ``` 6 ``` laboratory is fatal to the prosecution as prosecution failed to rule out the possibility of the sample being changed or tampered with. 12. 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. 13. A legal obligation is cast on the prosecution to prove that it was 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 the contraband reaches the laboratory is required to be established by the prosecution. 14. As the prosecution failed to show that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. ``` Crl.A.No.1674 of 2011 ``` ``` 7 ``` 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. 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]}. 17. As the prosecution failed to show that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. ``` Crl.A.No.1674 of 2011 ``` ``` 8 ``` 18. 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 evidence as discussed above. 19. 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