Somarajan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE K. BABU`** ``` WEDNESDAY, THE 2[ND] DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944 CRL.A NO. 958 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 15.04.2008 IN SC 1063/2005 OF THE ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC-II), KOLLAM ``` ``` SOMARAJAN, AGED 48 YEARS, S/O KUNJU PANICKEN, PONGUVILA THEKKETHIL, PAVUMBA THEKKU MURI, PAVUMBA VILLAGE, KARUNAGAPPALLY, KOLLAM. ``` ``` BY ADVS. SRI.SREENATH D., AMICUS CURIAE ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.958 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 958 of 2008 --------------------------------------------- Dated this the 2[nd] day of November, 2022 **JUDGMENT** Aggrieved by the judgment dated 15.04.2008, passed by the Additional District and Sessions Court (Adhoc-II), Kollam in Sessions Case No.1063 of 2005, the accused has preferred this appeal. The appellant/ accused 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 12.08.2003 at about 11.30 a.m., the accused was found in possession of 5 litres of arrack at Pavumba in violation of the provisions under the Abkari Act. 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 made over to the trial Court. On the appearance of the accused charge was framed against him for the offence punishable under ``` Crl.A.No.958 of 2008 ``` ``` 3 ``` 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 6 and proved Exts. P1 to P7. 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri.Sreenath D., the learned Amicus Curiae and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned Amicus Curiae relied on the following circumstances to substantiate the challenges of the appellant:- (1) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have ``` Crl.A.No.958 of 2008 ``` ``` 4 ``` been affixed on the bottle containing the sample. (2) The prosecution failed to show that the specimen of the seal used was produced before Chemical Examiner’s Laboratory. (3) The officials who handled the sample during its transit from the Court to the laboratory were not examined. 8. The alleged seizure was effected on 12.08.2003. The detecting officer had drawn the sample at the scene of occurrence. He had prepared Ext.P1 seizure mahazar, a contemporaneous document to evidence seizure. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court at the time of production of the sample to ensure its genuineness. Ext.P4 forwarding note does not contain the specimen of the seal used. The space meant for incorporating the specimen of the seal affixed on the bottle containing the sample is left vacant. 9. 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 ``` Crl.A.No.958 of 2008 ``` ``` 5 ``` seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 10. 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. 11. The learned Amicus Curiae relying on **Kumaran v. State of Kerala [2016 (4) KLT 718]** contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with. The learned Amicus Curiae has taken me to Ext.P4 forwarding note, wherein the space to mention the name of the Excise Guard with whom the sample was forwarded, is left vacant. Though the learned Magistrate countersigned Ext.P4, he has not put the date on which he made his initials. 12. While considering a similar fact situation this Court in **Kumaran v. State of Kerala [2016 (4) KLT 718],** held thus: _“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent_ ``` Crl.A.No.958 of 2008 ``` ``` 6 ``` _for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the - Excise Guard concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.”_ 13. In the present case, neither the Property Clerk nor the Excise Guard who delivered the sample to the laboratory was examined by the prosecution. The prosecution has not produced any evidence as to the date on which the sample was forwarded to the laboratory. Ext.P5 Certificate of Chemical Analysis would show ``` Crl.A.No.958 of 2008 ``` ``` 7 ``` that the sample was forwarded as per letter dated 12.08.2003 and the sample reached the laboratory only on 13.08.2003. The nonexamination of the Property Clerk of the Court and the Excise Guard who delivered the sample 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)]. 14. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 15. 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]}. 16. 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. Therefore, the ``` Crl.A.No.958 of 2008 ``` ``` 8 ``` appellant/accused is entitled to the benefit of doubt. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK