Sreedharan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 24[TH] DAY OF MAY 2022 / 3RD JYAISHTA, 1944** **CRL.A NO. 2230 OF 2008** **AGAINST THE JUDGMENT IN SC 481/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (FAST TRACK-II), ALAPPUZHA** ## **APPELLANT/ACCUSED:** SREEDHARAN, AGED 56 YEARS, S/O. PADMANABHAN, SHAJI BHAVAN, KADAPPA MURI, MYNAGAPPALLY, KOLLAM DISTRICT BY ADV SRI.S.SHANAVAS KHAN ## **RESPONDENT/COMPLAINANT:** THE STATE OF KERALA, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 24.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2230 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2230 of 2008 --------------------------------------Dated this the 24[th] day of May, 2022 ## JUDGMENT Aggrieved by the judgment dated 03.09.2008, passed by the Additional District and Sessions Judge, Fast Track Court-II, Alappuzha in S.C.No.481/2006, the accused has preferred this appeal. 2. The Trial Court convicted the accused (A1) for the offence punishable under Section 8(2) of the Abkari Act and sentenced him to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 3. The prosecution case is that the appellant/accused No.1 and the other accused were found in possession of 45 litres of arrack for sale on the eastern side of the toddy shop No.7/2004-2005 of Kumarapuram Village in Thamallackal Vadakkum muri. 4. After completing the investigation, final report was submitted against the appellant and other accused for the offences 3 Crl.A No.2230 of 2008 punishable under Sections 8(2) and 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-I, Haripad. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Trial Court. On the appearance of the accused, charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they came to be tried by the Trial Court for the aforesaid offence. 5. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P11 and MO1 series. 6. After the closure of the prosecution evidence, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded 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 on both sides, the Trial Court convicted the appellant for the aforesaid offence and acquitted the other accused. 7. Heard Sri. S.Shanavaskhan, the learned counsel appearing Crl.A No.2230 of 2008 4 for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 8. The learned counsel for the appellant/accused contended that the prosecution failed to establish that the contraband article allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 9. The learned counsel for the appellant relied on the following circumstances to establish his contentions: - (a) There was a delay of two days in forwarding the properties, including the sample, to the Court. - (b) No specimen seal was produced before the Court and forwarded to the laboratory so as to ensure the genuineness of the sample produced. - (c) The officials, who handled the sample during its transit from the place of occurrence to the laboratory - through the Court, were not examined to rule out the possibility of tampering with the sample. 10. The learned Senior Public Prosecutor submitted that the prosecution could establish the charge against the accused. Crl.A No.2230 of 2008 5 11. On 24.07.2004 at 3.50 a.m the Police team led by the Circle Inspector of Police, Haripad detected the offence. PW5, the Circle Inspector of Police searched the toddy shop No.7 of Kumarapuram Village and found the appellant in possession of 45 litres of arrack kept in MO1 series cans. The appellant was arrested from the spot. PW5 prepared Ext.P1 seizure mahazar. PW5 also recovered a sum of Rs.1,310/-from the table kept in the shop. PW5 had also prepared Ext.P5 search memo before conducting search. PW5 conducted part of the investigation and PW4 completed the investigation and submitted final report. 12. The offence was detected on 24.07.2004. Exhibit P10, the property list, shows that the properties including the sample reached the Court only on 26.07.2004. No satisfactory explanation was offered by the prosecution for the delay in the production of the properties before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. 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 Crl.A No.2230 of 2008 6 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. ” (Emphasis supplied) 13. 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. 14. 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. 15. 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. 16. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession 7 Crl.A No.2230 of 2008 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. 17. 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. Daulat Ram [AIR 1980 SC 1314] in Sasidharan's case (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 reemphasized 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's case Crl.A No.2230 of 2008 8 (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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 18. 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 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. 19. 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 Crl.A No.2230 of 2008 9 evidentiary value can be attached to the chemical analysis report. 20. 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 {Vide: Baburaj v. State of Kerala [2021 (6) KLT 416]} 21. I have carefully examined the search list, seizure memo and other contemporaneous records placed before the Court. This Court also noticed the following deficiencies in the prosecution evidence: - (a) The specimen of the seal has not been produced before the Court. - (b) No forwarding note was prepared and forwarded to the Chemical Examiner's laboratory. - (c) The detecting officer has not given evidence as to Crl.A No.2230 of 2008 10 the nature and description of the seal stated to have been affixed on the sample. - (d) The sample remained in the custody of the property clerk of the Court, the official who received the sample from the Court and the Police official who delivered the same to the laboratory. None of these officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 22. The resultant conclusion is that Ext.P3 Chemical Analysis Report has no evidentiary value. 23. 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. 24. 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 Crl.A No.2230 of 2008 11 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]}. 25. 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 appellant/accused is entitled to the benefit of doubt. 26. 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, not guilty of the offence punishable under Section 8(2) of the Abkari Act. He is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS