Sethu Kumar v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 29[TH] DAY OF JANUARY 2024 / 9TH MAGHA, 1945 CRL.A NO. 1746 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT SC 509/2003 OF ADDITIONAL DISTRICT ``` ``` COURT (ADHOC), MAVELIKKARA ``` ## **`APPELLANT/ACCUSED:`** ``` SETHU KUMAR, VALAYYATH VEEDU, PALLICKAL EAST, MAVELIKKARA. BY ADVS. SRI.R.GOPAN ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` SRI.G.SUDHEER. P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1746 OF 2007 ``` ``` 2 ``` ## **K.BABU, J** . -------------------------------------- ## CRL.A.No.1746 of 2007 --------------------------------------Dated this the 29[th ] day of January, 2024 ## **J U D G M E N T** Aggrieved by the judgment dated 18.09.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc) Mavelikara, in Sessions Case No.509/2003, the accused has preferred this appeal. The appellant was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of three and a half years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 19.11.2001, at 12.00 noon, the appellant was found in possession of 10 liters of arrack at Pichanattu Mukku, 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 8(2) and 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` CRL.A NO. 1746 OF 2007 ``` ``` 3 ``` Sessions Court, from 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 8(2) and 55(a) 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 4 and proved Exts.P1 to P8 and MO1. 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. On the side of defence, DWs1 and 2 were examined. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard Sri.K.Harilal the learned counsel appearing for the appellant/accused and Sri.G.Sudheer, the learned Public ``` CRL.A NO. 1746 OF 2007 ``` ``` 4 ``` ## 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 arrack allegedly seized from the place of occurrence eventually reached 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 properties has not been explained by the prosecution. ii) Ext.P1 mahazar does not contain the specimen of the seal used. iii) The prosecution has not offered any explanation for the custody of the sample during the period from 01.12.2001 to 07.12.2001. 9. The alleged seizure was effected on 19.11.2001. Ext.P6 property list shows that the sample was received in the court only on 07.12.2001. There is no explanation for the delay in the production of properties including the sample before the ``` CRL.A NO. 1746 OF 2007 ``` ``` 5 ``` Court. 10. In Ravi v. State of Kerala [2011 (3) KHC 121] on the 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.PC or by virtue of any of the provisions the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to ad 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.” 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. 11. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. No material has been placed before the Court to show that the specimen seal was produced ``` CRL.A NO. 1746 OF 2007 ``` ``` 6 ``` before the Court so as to enable the Court to ascertain the genuineness of the sample produced. 12. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296) , this Court held that the specimen of the seal shall be provided in the seizure mahazar and the same shall be produced before the Court to satisfy the genuineness of the sample produced in the court. 13. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per the letter dated 01.12.2001 of the Judicial First Class Magistrate Court, Mavelikkara. But it further shows that the sample reached the laboratory only on 07.12.2001. The sample was delivered in the laboratory by an excise guard by name Sri.Sadasivan Pillai. The prosecution has absolutely not given any explanation for the custody of the sample from 01.12.2001 to 07.12.2001. The property clerk, who is the custodian of the sample in the court and the excise guard, Sri.Sadasivan Pillai who delivered the sample in the laboratory, ``` CRL.A NO. 1746 OF 2007 ``` ``` 7 ``` were not examined by the prosecution. Non-examination of the officials who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314). 14. Non-examination of those officials who handled the sample during its transit from the court to the laboratory would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 15. The prosecution also failed to produce the copy of the forwarding note which contains the specimen seal used by the detecting officer. 16. 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 show that it was the same sample that was drawn from the ``` CRL.A NO. 1746 OF 2007 ``` ``` 8 ``` contraband seized eventually reached the Chemical Examiner's laboratory. 17. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary 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. 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. 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 ``` CRL.A NO. 1746 OF 2007 ``` ``` 9 ``` is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The upshot of the above discussion is that the conviction and sentence 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 offences alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K. BABU JUDGE ## **`saap`**