Sreekumar s/o Raghavan; Aji S. Rajan; Jacob Koshi v. Excise Inspector, Sulthan Bathery; State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 19[TH] DAY OF JANUARY 2023 / 29TH POUSHA, 1944 CRL.A NO. 1857 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 29.09.2007 IN SC 282/2005 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANTS/ACCUSED:`** - `1 SREEKUMAR, S/O RAGHAVAN, EZHUKON, KOLLAM` - `2 AJI S.RAJAN, S/O.SOMARAJAN, MULAVANA, KOLLAM` - `3 JACOB KOSHI, S/O.KOSHI PHILIP MULAVANA, KOLLAM.` ``` BY ADVS. SRI.A.SUDHI VASUDEVAN (SR.) SRI.JOSE JONES JOSEPH ``` ## **`RESPONDENT/COMPLAINANT:`** - `1 EXCISE INSPECTOR, SULTHAN BATHERI` - `2 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.` ``` BY ADV. SMT.REKHA,SR GP; SRI.RAJESH A ,SPL.GP ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1857 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1857 of 2007 --------------------------------------------- Dated this the 19[th] day of January, 2023 ## **JUDGMENT** Aggrieved by the judgment dated 29.09.2007, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No.282/2005, the three accused have preferred this appeal. The appellants/accused were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of five years each and pay a fine of Rs.2 Lakhs each. 2. The prosecution case is that on 26.07.2003, at 9.15 a.m., the accused were found in possession of and transporting about 450 litres of spirit in a hidden tank in an Ambassador Car bearing Registration No.-KL-07D/7504 at Noolpuzha 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 55(a) and 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 them for the offence ``` Crl.A.No.1857 of 2007 ``` ``` 3 ``` punishable under Section 55(a) 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. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P8 and MO 1, MO 2 Series and MO 3. 5. After the closure of the evidence on behalf of the prosecution, 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, there were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. On the side of the defence, DW1 was examined. 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 them thereunder. 6. Heard Sri.Sudhi Vasudev, the learned counsel appearing for the appellants/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants/accused challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the spirit allegedly seized from the place of occurrence was subjected to ``` Crl.A.No.1857 of 2007 ``` ``` 4 ``` analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellants relied on the following circumstances to substantiate his contentions:- - (1) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (2) The prosecution failed to establish the genuineness of the sample produced before the Court. - (3) The prosecution failed to explain the custody of the sample during the interregnum from 28.07.2003 to 14.08.2003. 9. The alleged seizure was effected on 26.07.2009 at 9.15 a.m. at Muthanga Check Post. On 26.07.2003 itself the Excise Inspector concerned submitted the crime and occurrence report before the Court concerned. The bottle containing the sample was not produced before the Court on that day. The sample was produced before the Court only on 28.07.2003. No explanation has been offered by the prosecution for the delay in the production of the sample. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the production of properties, a Division Bench ``` Crl.A.No.1857 of 2007 ``` ``` 5 ``` ## 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 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). **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. The detecting officer had prepared Ext.P2 seizure mahazar at the scene of occurrence. He had drawn the sample at the scene of occurrence and sealed the same. He had not mentioned the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer had also not produced the specimen of the seal at the time of the production of the sample before the Court to ensure the ``` Crl.A.No.1857 of 2007 ``` ``` 6 ``` genuineness of the same. 13. 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. 14. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 28.07.2003 of the Judicial First Class Magistrate Court-I, Sulthan Bathery. Ext.P8 further shows that the sample reached the laboratory only on 14.08.2003 and the same was delivered by an Excise Guard by name Anilkumar P.P. The sample was received in the Court by the Junior Superintendent of the Court on 28.07.2003. Neither the Junior Superintendent of the Court nor Sri.Anilkumar P.P., the Excise Guard who delivered the sample to the laboratory was not examined by the prosecution. There was no explanation for the custody of the sample during the interregnum from 28.07.2003 to 14.08.2003. 15. While dealing with a similar fact situation, this Court in **Viswanadhan v. State of Kerala** [2016 (3) KHC 38] held thus: ``` Crl.A.No.1857 of 2007 ``` ``` 7 ``` “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 16. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 17. In the absence of any explanation regarding the custody of the sample during interregnum from 28.07.2003 to 14.08.2003, it can be concluded that the prosecution failed rule out the possibility of the sample being changed or tampered with. 18. As the prosecution failed to establish that the spirit allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed ``` Crl.A.No.1857 of 2007 ``` ``` 8 ``` to establish the link connecting the accused with the contraband seized. 19. 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. 20. 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]}. 21. The resultant conclusion is that the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellants/accused are entitled to the benefit of doubt. ``` Crl.A.No.1857 of 2007 ``` ``` 9 ``` 22. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above ``` Sd/- K.BABU JUDGE ``` VPK