Sibi Antony v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 14[TH] DAY OF SEPTEMBER 2022 / 23RD BHADRA, 1944 CRL.A NO. 800 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 513/2005 OF ADDITIONAL DISTRICT AND SESSIONS COURT(ADHOC)FAST TRACK COURT-II, PATHANAMTHITTA** ## **APPELLANT/ACCUSED:** SIBI ANTONY,S/O CHERUKAI ANTONY, VENTHARAYIL VEEDU, CHATHANTHARA, KUNNAM MURI, KOLLAMULA VILLAGE, RANNY TALUK, PATHANAMTHITTA DISTRICT. BY ADVS. SHRI.M.V.S.NAMPOOTHIRY SRI.ABRAHAM MATHEW PANACHIMOOTTIL ## **RESPONDENT:** STATE OF KERALA, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.09.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.800 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.800 of 2008 --------------------------------------Dated this the 14[th] day of September, 2022 ## JUDGMENT Aggrieved by the judgment dated 07.03.2008, passed by the Additional District and Sessions Court (Ad-hoc) Fast Track-II, Pathanamthitta in S.C.No.513/2005, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 25.08.2003 at about 6.30 p.m, the accused was found in possession of 3 litres of arrack in a 5 litre can and a glass tumbler at Chathanthara in Kollamula Village. 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 Magistrate. The case was committed to the Sessions Court, from where it was Crl.A No.800 of 2008 3 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 P9 and MOs 1 and 2. 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. M.V.S. Nampoothiry, 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 4 Crl.A No.800 of 2008 judgment of conviction and sentence on the following grounds: - (i) The arrest and seizure are doubtful in view of the presence of the crime number in Ext.P2 arrest memo. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The arrest and seizure were effected by the Sub Inspector of Police, Vechoochira on 25.08.2003. According to the Detecting officer (PW4), the accused was arrested along with the contraband substance at 6.30 p.m on 25.08.2003. 9. The learned counsel for the accused disputed the arrest of the accused. The learned counsel relying on the presence of Crime number in Ext.P2 arrest memo, contended that the arrest of the accused from the spot is doubtful. Exhibit P2 contains the number of the Crime registered against the accused. While dealing with a similar fact situation, this Court in Santhosh v. State of Kerala [2021 Crl.A No.800 of 2008 5 ## (5) KHC 214] held thus: “14. The presence of crime number in the arrest memo prepared by the detecting officer at the place of occurrence points to the following possibilities ; either the first information report was registered prior to the alleged recovery of the contraband substance or the number of the first information report was inserted in the arrest memo after its registration. 15. In either case, the veracity of the prosecution version regarding the incident proper is doubtful. It is for the detecting officer to offer explanation in this regard. In the instant case, it is alleged by the prosecution that the seizure was effected and the accused was arrested prior to the registration of the first information report ; then there could not be the crime number in the arrest memo. This creates doubt about the genesis of the prosecution case. The seizure of the contraband substance and the arrest of the accused, resultantly come under cloud. [See : Karunakar Bindhani v. State of Kerala (2016 KHC 758: 2017(1) KLD 48) and Rafeeque v. Sub Inspector of Police, Kunnamkulam Police Station and another (2020 (4) KLT 188 = 2020 (3) KHC 715)]” 10. In the absence of any satisfactory explanation offered by the prosecution with regard to the presence of the crime number in Ext.P2 arrest memo, a doubt arises as to the manner in which the seizure and arrest were effected. 11. The learned counsel for the appellant/accused relied on the following circumstances to contend that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory: Crl.A No.800 of 2008 6 - (a) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory. - (c) The various officials, who handled the sample during its transit from the Court to the laboratory, were not examined by the prosecution. 12. Exhibit P1 is the seizure mahazar prepared by the Detecting officer to evidence arrest and seizure. According to PW4, he had drawn the sample at the scene of occurrence. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. Exhibit P7 is the forwarding note/requisition for sending sample. The space for incorporating specimen seal in Ext.P7 is left vacant. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner to verify the genuineness of the sample brought for analysis. Crl.A No.800 of 2008 7 13. The sample remained in the custody of the property clerk of the Court till 04.09.2003. The sample was forwarded to the laboratory on 04.09.2003 through Police Constable No.1688, as is evident from Ext.P8 the Certificate of Chemical Analysis. The sample reached the laboratory on 05.09.2003. The property clerk of the Court and the Police official, who delivered the sample to the laboratory, were not examined by the prosecution. Nonexamination of these two officials is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. 14. 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. 15. A legal obligation is cast on the prosecution to prove that 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 8 Crl.A No.800 of 2008 contraband commencing from the place of occurrence to the stage when it reaches the laboratory is required to be established by the prosecution. 16. 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's case (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 reemphasized 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's case (supra), this Court further held that Courts could presume that an official act was regularly and properly performed only if the said Crl.A No.800 of 2008 9 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 17. 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. 18. 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 the chemical analysis report. 19. In the present case, the prosecution failed to show that Crl.A No.800 of 2008 10 the contraband substance allegedly seized from the place of occurrence was examined in the Chemical Examiner's Laboratory. The resultant conclusion is that Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 20. 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. 21. 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]}. 22. 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 Crl.A No.800 of 2008 11 entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 23. 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