SHAJI S/O SAIDALAVI v. STATE OF KERALA

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ``` CRL.A NO. 2908 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 242/2008 OF ADDITIONAL DISTRICT ``` # **`COURT (ADHOC)-II, PALAKKAD`** ## **`APPELLANT/ACCUSED:`** ``` SHAJI S/O. SAIDALAVI, RESIDING AT ELASSAM VEEDU, ARAMKALLU, PATTIKKADU.P.O, THRISSUR. ``` ``` BY ADVS. SRI.T.MADHU SMT.C.R.SARADAMANI ``` ## **`RESPONDENTS/STATE & COMPLAINANT:`** ``` 1STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` 2THE STATION HOUSE OFFICER KASABA POLICE STATION, PALAKKAD. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2908 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 2908 OF 2008** =================== Dated this the 19[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 11.12.2008, passed by the Additional Sessions Court, Fast Track Court No.II, Palakkad in S.C.No.242/2008, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of five years and pay a fine of Rs.3 Lakh. 2. The prosecution case is that on 21.12.2006 at about 9.00 a.m., the accused was found transporting spirit in 15 cans having the capacity of 35 litres each in a Maruti Zen car bearing Registration No. KL.7BB-31 in violation of the provisions of Abkari Act. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 55(a) of the Abkari Act before ``` CRL.A NO. 2908 OF 2008 ``` ``` 3 ``` 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, charge was framed against him for the offence punishable under Section 55(a) 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 5 and proved Exts.P1 to P11, and MO 1, MO 2 series and MOs. 3 to 4. 5. After the closure of the prosecution evidence, 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 found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. ``` CRL.A NO. 2908 OF 2008 ``` ``` 4 ``` 6. Heard Sri. T. Madhu, 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 ground that, the prosecution failed to establish that the spirit allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant/accused relied on the following circumstances to substantiate his contentions; a. The inordinate delay in the production of properties including the sample before the Court has not been satisfactorily explained by the prosecution. b. Ext.P2 seizure mahazar, the contemporaneous document prepared at the scene of occurrence does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. ``` CRL.A NO. 2908 OF 2008 ``` ``` 5 ``` c. PW4 the Detecting Officer has not given evidence as to the specific nature of the seal while giving evidence. d. Ext.P9 forwarding note/requisition of sending sample to the laboratory does not contain the nature and description of the specimen seal used by the Detecting Officer. e. The various officials, who handled the sample were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 9. The alleged seizure was effected on 21.12.2006 by the Sub Inspector of Police, Kasaba Police Station (PW4). Ext.P7 property list shows that the properties including the sample were produced before the Court only on 02.01.2007. The prosecution has not offered any satisfactory explanation for the delay in the production of properties including the sample before the Court. 10. In **Ravi v. State of Kerala & another** [2011 (3) KHC 121] on the question of delay in production of ``` CRL.A NO. 2908 OF 2008 ``` ``` 6 ``` ## properties a Division Bench of this Court held thus: “8. We therefore, answer the reference as follows; It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add 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. ” (Emphasis supplied) 11. 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. 12. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 13. Ext.P2 seizure mahazar prepared to evidence seizure does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. ``` CRL.A NO. 2908 OF 2008 ``` ``` 7 ``` 14. PW4 the Detecting Officer has not given evidence as to the nature of the seal used at the time of drawing the sample. The specimen of the seal was not produced before the Court at the time of production of the sample to establish its genuineness. Ext.P9 forwarding note /requisition of sending sample does not contain the specimen of the seal. In Ext.P9 forwarding note /requisition of sending sample, the space meant for incorporating the specimen of the seal is left blank. There is nothing to show that the specimen of the seal was forwarded to Chemical Examiner to ascertain the genuineness of the sample produced for analysis. The bottles containing the sample was produced before the Court on 02.01.2007. The sample remained in the custody of the Junior Superintendent of the Court, Property Clerk of the Court, and a Women Police Constable by name Smt. Shirm Bhanu, who delivered the same in the laboratory. Smt. Shirm Bhanu, obtained the bottles containing the sample from the Court on 19.02.2007, but she delivered the sample to the ``` CRL.A NO. 2908 OF 2008 ``` ``` 8 ``` laboratory only on 20.02.2007. None of those officials were examined by the prosecution. The non-examination of those officials, who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution as it failed to establish the tamper-proof despatch of the sample to the laboratory. 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 it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof 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. ``` CRL.A NO. 2908 OF 2008 ``` ``` 9 ``` 17. In **Sasidharan v. State of Kerala [2007 (1) KLT 720],** 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 tamperproof condition. Relying on **State of Rajastan v. Daulath 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. ``` CRL.A NO. 2908 OF 2008 ``` ``` 10 ``` This Court specified that the presumption under Section 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 **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. 19. 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 ``` CRL.A NO. 2908 OF 2008 ``` ``` 11 ``` the Chemical Analysis Report. 20. In the instant case, the prosecution failed to show that the spirit allegedly seized from 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 to connect the accused with the contraband. 21. 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. 22. 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], ``` CRL.A NO. 2908 OF 2008 ``` ``` 12 ``` ## **Sasidharan v. State of Kerala** [2007 (1) KHC 275]}. 23. 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. 24. 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. The appellant/accused is, therefore, found not guilty of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per the directions of this Court shall be disbursed to the appellant. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU