Soman v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.A NO. 1675 OF 2007 ``` ``` AGAINST THE JUDGMENT IN SC 267/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` SOMAN S/O.SURENDRAN,, AGED 41 YEARS, PULPALLY P.O.,, WAYANAD. ``` ``` BY ADV SRI.RAFFEEKH.K ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1675 OF 2007 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 04.08.2007, passed by the Additional Sessions Court (Adhoc) -II, Kalpetta in Sessions Case No. 267/2005, the accused has preferred this appeal. The appellant was convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 24.04.2004 at 5.20 pm, the accused was found in possession of 13 packets, each containing 100 ml of Karnataka made arrack, at Pulpally 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 the Sessions Court from where it was made over to the ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** 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 7 and proved ExtsP1 to P9 and MO 1 series. 5. After the closure of the evidence on behalf of the prosecution, 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 to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and pay a ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [20 x 9] intentionally omitted <==** fine of Rs. 1 Lakh under Section 55(a) of the Abkari Act. 6. Heard Sri. Rafeeque Kottakkal, 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 seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (i) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (ii) Ext. P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** sample. - (iii) PW6, the detecting officer has not given evidence as to the nature of the seal used. - (iv) The officials who handled the sample during its transit from the Court to the laboratory were not examined. 9. The alleged seizure was on 24.04.2004. PW6, the Sub Inspector of Police, Pulpally, detected the offence. He had drawn the sample in two bottles at the scene of occurrence. The properties including the sample were produced before the Court only 27.04.2004, which is evident from Ext.P5 list of properties. PW6 gave evidence that as he was busy with his official duties, he could not produce the properties including the sample in time. This is not a satisfactory explanation for the delay occurred in the production of properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a ``` CRL.A NO. 1675 OF 2007 ``` ..6.. ## Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In **Ravi's case** (supra) the Division Bench held that production of the property before the court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 11. There is no satisfactory explanation for the delay in the production of properties before the court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 12. Ext. P1 seizure mahazar does not contain the nature and description of the seal stated to have been ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [20 x 8] intentionally omitted <==** affixed on the bottle containing the sample. PW6, the detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of properties on 27.04.2004. The necessary inference is that the officials concerned in the court could not ascertain the genuineness of the sample produced before the court. The sample remained in the custody of the property clerk of the Court till 06.07.2004, the date on which it reached the laboratory. Ext.P7 shows that the bottles containing the sample were handed over to the laboratory on 06.07.2004 by a police constable No.1316. The bottles containing the sample remained in the custody of the property clerk of the court and the police official who delivered the sample to the laboratory. Those officials were not examined by the prosecution. The inevitable consequence of this omission is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. ``` CRL.A NO. 1675 OF 2007 ``` ..8.. 13. 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. 14. 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 tamperproof 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. 15. 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- ``` CRL.A NO. 1675 OF 2007 ``` ..9.. 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 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 ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** **Sathi** (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala** [2011 (3) KLT 353] **.** 16. In **Bhaskaran v. State of Kerala** (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. 17. In the present case the prosecution failed to prove that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P7 certificate of chemical analysis has no evidenciary value. 18. 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 contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** 19. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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. 20. 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 appellant/accused is therefore found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, (i) the Appeal is allowed ; ``` CRL.A NO. 1675 OF 2007 ``` **==> picture [26 x 9] intentionally omitted <==** - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the charge ; - (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