Shanmughan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 13[TH] DAY OF JULY 2022 / 22ND ASHADHA, 1944 CRL.A NO. 1975 OF 2008** **AGAINST THE JUDGMENT IN SC 187/2006 OF ADDITIONAL DISTRICT COURT FAST TRACK COURT NO-II, PALAKKAD** ## **APPELLANT/ACCUSED NO.1:** SHANMUGHAN, S/O RAJAN, MUNDIPATHIKADU DESOM, MUTHALAMADA, CHITTUR, PALAKKAD DISTRICT. BY ADVS. C.C.THOMAS (SR.) NIREESH MATHEW ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE OFFICE, KOLLANGODE,, PALAKKAD DISTRICT, REPRESENTED BY PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY SR. PUBLIC PROSECUTOR SMT. REKHA S THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.Appeal. 1975/2008 2 ## **JUDGMENT** Dated this the 13[th] day of July 2022 This appeal arises from the judgment dated 29.08.2008 passed by the Additional Sessions Court, Fast Track No. II, Palakkad in S.C. No. 187 of 2006. The appellant/accused No.1 was convicted for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of four years and pay a fine of Rs.1,00,000/-. Accused No.2 was acquitted of the offences alleged against him. 2. The prosecution case is that on 14.01.2004 at 6 p.m., the appellant and the other accused were found in possession of 5 litres of arrack and also found manufacturing illicit arrack at Mundipathi Desom, in Muthalamada village in contravention of the provisions of the Abkari Act. 3. After completing the investigation, final report was filed against the accused for the offences punishable under Crl.Appeal. 1975/2008 3 Sections 8(2), 55(b) and 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, Palakkad from where it was made over to the Assistant Sessions Court (Addl.), Palakkad and later made over to the trial Court. On the appearance of the accused, charges were framed against them for the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial court for the aforesaid offences. 4. The prosecution examined P.Ws. 1 to 6, and proved Exts.P1 to P7 and M.Os.1 to 8. 5. After the closure of the prosecution evidence, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments on both sides and considering the evidence, found Crl.Appeal. 1975/2008 4 the 1[st] accused guilty of the offences punishable under Sections 8(1) and 8(2) and 55(b) and 55(g) of the Abkari Act and sentenced him as aforesaid. The 2[nd] accused was acquitted of the charges levelled against him. 6. Heard Shri. Nireesh Mathew, the learned counsel for the appellant and Smt. Rekha S, the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish that the sample remained in tamper-proof condition during its transit from the Court to the Chemical Examiner's Laboratory. The learned counsel for the appellant contended that Ext. P5 forwarding note/requisition for sending sample to the laboratory does not contain the name of the Excise Officer with whom the sample was forwarded to the Laboratory. It is further submitted that the date on which the sample was forwarded to the laboratory is also not evident from Ext. P5. Ext. P5 forwarding note reveals that the space meant for entering the name of the official with whom the sample was Crl.Appeal. 1975/2008 5 forwarded is left vacant. The prosecution has not given evidence as to the date on which the sample was forwarded. The learned Magistrate who countersigned Ext. P5 has not put the date on which he made the initials. 8. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Crl.Appeal. 1975/2008 6 Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court - or the Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 9. In the instant case, the property clerk who dealt with the sample and the Excise Guard who received the sample Crl.Appeal. 1975/2008 7 from the Court were not examined. The resultant conclusion is that the prosecution failed to prove that the sample which reached the laboratory for analysis is not tampered with. 10. Ext. P4 list of properties shows that the bottles containing the sample were received in the Court by the Junior Superintendent. Ext. P7 Chemical Analysis Report shows that the sample was forwarded to the laboratory on 06.07.2004. The bottles containing the sample were delivered in the laboratory by an Excise Guard by name Janardhanan on 7.7.2004. The sample remained in the custody of the property clerk and the Excise Guard by name Janardhanan who delivered the sample to the laboratory. None of these persons were examined to rule out the possibility of the sample being changed or tampered with. The consequence of this omission on the part of the prosecution is that, it failed to prove that the sample remained tamperproof during its transit from the Court to the laboratory. 11. The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution Crl.Appeal. 1975/2008 8 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. 12. 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. 13. 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 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 Crl.Appeal. 1975/2008 9 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 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]. 14. In the instant case, as the prosecution failed to show that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext. P7 Certificate of Chemical Analysis has no evidentiary value. 15. The result of the above discussion is that the prosecution miserably failed to establish the guilt of the 1[st] accused/appellant. Therefore, the conviction and sentence Crl.Appeal. 1975/2008 10 passed against him cannot be sustained. The accused is found not guilty of the offences punishable under Sections 8(2), 55(b) and 55(g) of the Abkari Act. In the result, - (i) the appeal is allowed. - (ii) The judgment of conviction and sentence passed against the 1[st] accused/appellant is set aside. - (iii) The accused is acquitted of the offences alleged. - (iv) He is set at liberty. - (v) Any amount deposited by the appellant/accused as per the interim orders of this court shall be disbursed to him as per law. ## Sd/- **K. BABU** **JUDGE** sb