SIVANANDAN v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` FRIDAY, THE 5[TH] DAY OF APRIL 2024 / 16TH CHAITHRA, 1946 CRL.A NO. 1575 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 15.07.2009 IN SC NO.470 OF 2007 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, ALAPPUZHA ``` ``` APPELLANT/S: ``` ``` SIVANANDAN PANACHAMOOTTIL VEEDU, 53, KANDALLOOR SOUTH, MURI, KANDALLOOR VILLAGE, ALAPPUZHA DISTRICT. BY ADVS. SRI.B.RENJITHKUMAR SRI.G.RAJEEVKUMAR ``` ## **`RESPONDENT/S:`** ## **`STATE OF KERALA`** ``` THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY PUBLIC PROSECUTOR SRI G SUDHEER ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl. A.No. 1575 of 2009 ..2.. ## **K.BABU, J.** -------------------------------------- ## **Criminal Appeal No.1575 of 2009** --------------------------------------Dated this the 5[th] day of April 2024 ## **JUDGMENT** Aggrieved by the judgment dated 15.07.2009, passed by the Additional Sessions Court (Fast Track Court–II), Alappuzha in S.C.No.470/2007, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 14.04.2003 at 06.15 p.m, the accused was found in possession of 700 ml of arrack at Kayamkulam in Kandallor village 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 Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** Act before 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 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 3 and proved Exts.P1 to P7 and MO 1. 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 convicted the appellant/accused for the aforesaid offence. Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** 6. Heard the learned counsel appearing for the appellant/accused and the learned 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 has not succeeded in establishing that the contraband substance seized at the scene 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) Exhibit P3 seizure mahazar does not contain the nature and description of the seal stated to have been used by the detecting officer. - (ii) The specimen of the seal was not produced before the Court. - (iii) The forwarding note was not produced and marked. Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** - (iv) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined. 9. The alleged seizure was effected on 14.01.2003. The detecting officer prepared Ext.P3 seizure mahazar, which does not contain the nature and description of the seal stated to have been used by the detecting officer. The specimen of the seal was not produced before the Court to establish the genuineness of the sample produced. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison. The forwarding note which contains the specimen of the seal used has not been produced and marked. 10. 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 Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** 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. 11. 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. 12. 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 Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 13. The sample was received in the Court by the Junior Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in the laboratory by an Excise Guard by name Sri. Sibun.A.Raj. The junior superintendent of the court, the property clerk and Sri. Sibun.A.Raj, the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of various 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)** . 16. The resultant conclusion is that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory. Therefore, Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. 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 corelated. 18. 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. 19. 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 offence alleged. He Crl. A.No. 1575 of 2009 **==> picture [20 x 9] intentionally omitted <==** is set at liberty. Any amount deposited by the accused as per the interim orders of the Court shall be disbursed to him as per law. The Criminal Appeal is allowed as above. **Sd/K.BABU, JUDGE** kkj