Sivadasan Kuppadi Sulthan Bathery v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, ``` ## **`1944`** ## **`CRL.A NO. 1560 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 177/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/S:`** ``` SIVADASAN KUPPADI SULTHAN BATHERY, WAYNAD DISTRICT. BY ADV SRI.JIJO PAUL ``` ## **`RESPONDENT/S:`** ``` THE STATE OF KERALA ``` ``` THE EXCISE INSPECTOR, SULTHAN BATHERY EXCISE, RANGE-THROUGH THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM, KOCHI-31. ``` ## **`OTHER PRESENT:`** ``` REKHA.(GP),RAJESH .A (SPL.GP) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1560 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 14.07.2008, passed by the Additional Sessions Court, Adhoc -II, Kalpetta, in Sessions Case No.177 of 2005, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.04.2004 at 11.30 a.m. the accused was found in possession of 6.750 litres of Indian Made Foreign Liquor at Chulliyode 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 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to ``` CRL.A NO. 1560 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** 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 3 and proved Exts. P1 to P7 and MOs 1, 2 and MO3 series. 5. After the closure of the 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. DW1 was examined on the side of the defence and Exts.D1 to D3 were marked. The trial Court, after hearing the arguments addressed on both sides, found the accused ``` CRL.A NO. 1560 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** guilty of the offence under Section 58 of the Abkari Act and convicted him thereunder. 6. Heard Sri.Jijo Paul, 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 challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the scene of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (a) The Detecting Officer has not affixed any seal on the bottles containing the sample of the contraband substance. - (b) The custody of the sample during the ``` CRL.A NO. 1560 OF 2008 ``` ..5.. interregnum from 02.04.2004 to 13.04.2004 has not been explained by the prosecution. - (c) The prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. 9. The alleged seizure was effected on 01.04.2004 by the Excise Inspector, Sultanbathery Excise Range. He has prepared Ext.P1 seizure mahazar at the scene of occurrence. In Ext.P1, PW1 has stated that he has not affixed any seal on the bottle containing the sample. 10. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P4, Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 02.04.2004 of the Judicial First Class Magistrate-I, Sultanbathery. Ext.P4 further shows that the sample reached the laboratory only on 13.04.2004. The sample was delivered in the laboratory by an Excise ``` CRL.A NO. 1560 OF 2008 ``` ..6.. Guard by name E.S. Unnikrishnan. Shri. E.S. Unnikrishnan and the official who sent the sample to the laboratory were not examined by the prosecution. The custody of the sample during the period from 02.04.2004 to 13.04.2004 remains unexplained. Ext.P7 forwarding note/requisition for sending sample shows that the name of the official with whom the sample was forwarded to the laboratory has not been mentioned. The space meant for mentioning the name of the official with whom the sample was sent to the laboratory is left vacant. Though the learned Magistrate countersigned the same, he has not put the date on which he has put the signature. 11. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining ``` CRL.A NO. 1560 OF 2008 ``` ..7.. the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 12. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 13. 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 gets ``` CRL.A NO. 1560 OF 2008 ``` ..8.. support from **Kumaran v. State of Kerala** [2016 (4) KLT 718] and **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314). 14. As the prosecution has failed to show that the contraband seized from the place of occurrence was eventually examined in the Chemical Examiner’s Laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance seized. 16. 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 punishable under Section 58 of the Abkari Act. In the result, (i) The Appeal is allowed ; ``` CRL.A NO. 1560 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the offence alleged; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. **Sd/K. BABU, JUDGE** kkj