Soman Kuttitharayil v. State of Kerala; Kamalamma Kutthitharayil v. State of Kerala

# **`THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 2224 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 14.11.2006 IN SC 498/2000 OF ADDITIONAL SESSIONS COURT-I,MAVELIKKARA ``` ## **`APPELLANT/1ST ACCUSED:`** ``` SOMAN KUTTITHARAYIL, SOJAN BHAVANAM, KUTTAMPEROOR MURI, MANNAR VILLAGE. ``` ``` BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 18.05.2022, ALONG WITH CRL.A.2225/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 2 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 18[TH] DAY OF MAY 2022 / 28TH VAISAKHA, 1944 CRL.A NO. 2225 OF 2006 ``` ``` AGAINST THE JUDGMENT DATED 14.11.2006 IN SC 470/2001 OF ADDITIONAL DISTRICT COURT-I,MAVELIKKARA ``` ## **`APPELLANT/2ND ACCUSED:`** ``` KAMALAMMA KUTTITHARAYIL, SOJAN BHAVANAM, KUTTAMPEROOR MURI, MANNAR VILLAGE. ``` ``` BY ADVS. SRI.JOHN BRITTO SRI.C.A.RAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 18.05.2022, ALONG WITH CRL.A.2224/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------Crl.A Nos.2224 & 2225 of 2006 --------------------------------------------Dated this the 18[th] day of May, 2022 ## **JUDGMENT** These appeals are directed against the common judgment dated 14.11.2006 in S.C.Nos.498/2000 and 470/2001 on the file of the Additional Sessions Court-I, Mavelikkara which arose from Crime No.322 of 1997 of Mannar Police Station. The appellant in Crl.A.No. 2224/2006 is accused No.1 and the appellant in Crl.A.No.470/2001 is accused No.2 in the crime. 2. By the impugned judgment, the appellants were convicted for the offences punishable under Sections 8(2) and 55(g) of the Kerala Abkari Act. They were sentenced to undergo rigorous imprisonment for a period of one year each and to pay a fine of Rs.1,00,000/- each under Section 8(2) of the Abkari Act. They were also sentenced to undergo rigorous imprisonment for a period of five years each and to pay a fine of Rs.1,00,000/- each under Section 55(g) of the Abkari Act. ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 4 ``` 3. The prosecution case is that on 02.09.1997, around 11.45 a.m., the appellants were found in possession of 250 ml. of arrack in the house by the name ‘Kuttitharayil Sojan Bhavanam’ in Kuttamperoor Muri of Mannar village. The crime was detected by the Mannar Police. The Police also recovered 8 litres of fermented spirit and about 85 litres of wash intended to manufacture arrack. The appellants were arrested from the place of occurrence along with the contraband substances. 4. After completing the investigation, the Mannar Police submitted final report against the appellants before the Judicial First Class Magistrate Court-II, Chengannur. The case was committed to the Sessions Court, Alappuzha, from where it was made over to the Additional Sessions Court-I, Mavelikara. On the appearance of the accused, the Court framed charges against them. They pleaded not guilty to the charges. 5. The prosecution examined PWs1 to 6 and proved Exts.P1 to P10 and MOs 1 to 5. 6. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C were ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 5 ``` recorded. They pleaded total 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. After hearing the arguments addressed from both sides, the Trial Court convicted the appellants as aforesaid. 7. Heard Sri.John Britto, the learned counsel for the appellants and Smt.Rekha.S., the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellants contended that the prosecution failed to establish that the contraband substances, allegedly seized from the possession of the accused, eventually reached the Chemical Examiner’s laboratory in a tamper-proof condition. It is submitted that the prosecution failed to establish the chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reached the laboratory. 9. The learned counsel for the appellants relied on the following circumstances to establish his contentions:- (1) The nature and description of the seal stated ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 6 ``` to have been affixed on the samples allegedly drawn from the scene of occurrence had not been narrated in Ext.P3 seizure mahazar. - (2) There is nothing to show that the specimen impression of the seal was forwarded to the Chemical Examiner’s Laboratory for comparison. 10. I have carefully examined the seizure mahazar and the other contemporaneous records prepared at the scene of occurrence. The nature of the seal stated to have been used by the detecting officer had not been mentioned either in the seizure mahazar or any other documents. It is further seen that the specimen of the seal had not been produced in the Court to enable the Court to satisfy the genuineness of the sample produced in the Court. As also, there is no evidence to show that a forwarding note was prepared and forwarded to the Chemical Examiner’s laboratory. The law on these aspects was considered by this Court in **Baburaj v. State of Kerala [2021 (6) KLT 416].** Following a series of precedents in **Baburaj** (supra), this Court held thus:- “22. 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 ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 7 ``` sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. “23. 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. 24. 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. Daulath Ram MANU/SC/0242/1980 : (1980 KLT OnLine 1025 (SC) : 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 MANU/KE/0947/2007 : (2017 (1) KLT SN 6 (C. No. 7) : 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 S. 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). 25. In Bhaskaran v. State of Kerala MANU/KE/0606/2019 : (2019 (3) KLT SN 34 (C. No.49) : 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. 26. In Rajamma v. State of Kerala ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 8 ``` (MANU/KE/0056/2014 : 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. 27. 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 sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory.” ## 11. The Apex Court in **Vijaya Pandey v. State of U.P.** **(AIR 2019 SC 3569)** while examining the provisions of the NDPS Act held thus:- “the failure of the prosecution in the case to relate the seized sample with that seized from the appellant, makes the case no different from failure to produce the seized sample itself. In the circumstances the mere production of the Laboratory report that the sample tested was narcotics cannot be conclusive proof by itself.” 12. A survey of the precedents on the subject leads to the conclusion that strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations against the accused is substantiated to ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 9 ``` the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act (Vide: **Baburaj v. State of Kerala [2021 (6) KLT 416]** ) 13. In the instant case, this Court noticed the following loopholes in the prosecution evidence:- - (a) Ext.P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. - (b) No specimen seal was produced before the Court and forwarded to the Chemical Examiner’s laboratory. - (c) The detecting officer has not given evidence as to the nature and description of the seal used. - (d) The sample changed several hands before reaching the laboratory. Most of the officials who handled the sample were not examined by the prosecution. - (e) Forwarding note/requisition for sending sample to the laboratory was not produced and marked. 14. The resultant conclusion is that Ext.P6 Certificate of Chemical Analysis has no evidentiary value to connect the appellants with the crime alleged. 15. In the instant case, the prosecution was unable to establish the link connecting the accused with the ``` Crl.A.Nos.2224 & 2225 of 2006 ``` ``` 10 ``` contraband seized and the sample analysed in the laboratory. Therefore, the appellants/accused are entitled to the benefit of doubt. 16. 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. The appellants/accused are, therefore, not guilty of the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. They are acquitted of the charges. They are set at liberty. The appeals are allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK