Sreekumar v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 25[TH] DAY OF MAY 2022 / 4TH JYAISHTA, 1944** **CRL.A NO. 435 OF 2007** **AGAINST THE ORDER/JUDGMENTSC 1699/2001 OF ADDITIONAL SESSIONS COURT.-TRIAL OF ABKARI ACT CASES,NEYYATTINKARA CP 54/2000 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,KATTAKADA** ## **APPELLANT/ACCUSED:** SREEKUMAR AGED 1 YEARS S/O SUKUMARAN NADAR, REENA BHAVAN, MARAKUNNAM, MUKUNTHARA,, KALLIKKADU, THIRUVANANTHAPURAM. BY ADVS. SRI.S.V.PREMAKUMARAN NAIR SRI.R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. SMT. REKHA.S (SR.P.P) **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No. 435 of 2007 2 **K.BABU, J** . -------------------------------------Criminal Appeal No.435 of 2007 --------------------------------------Dated this the 25[th] day of May, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 01.03.2007, in S.C.No 1699/2001, passed by the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara, the appellant/accused has preferred this appeal. 2. The trial Court convicted the appellant/accused for the offence punishable under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of five years and pay a fine of Rs.1,00,000/-. 3. The prosecution case is that on 27.11.1999 at about 8.00 p.m, the appellant/accused was found in possession of 60 litres of arrack at Kuttichal Junction in violation of the provisions of the Abkari Act. 4. After completing the investigation, final report was submitted against the accused for the offence 3 Crl.A No. 435 of 2007 punishable under Section 58 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 Section 58 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. 5. The prosecution examined PWs 1 to 7 and proved Exts.P1 to P7 and MOs 1 and 2 series. 6. 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 adduce evidence, if any, he may have in support thereof. DWs 1 and 2 were examined on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Crl.A No. 435 of 2007 4 Section 58 of the Abkari Act and convicted him thereunder. 7. Heard Sri.R.T Pradeep, the learned counsel appearing for the appellant/accused and Smt.Rekha.S, the learned Senior Public Prosecutor appearing for the State. 8. The learned counsel for the appellant challenged the impugned judgment on the following grounds:- 1. The prosecution has not satisfactorily explained the delay in the production of the sample and other properties before the Court. 2. The prosecution has not succeeded in establishing that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 9. The alleged seizure was made on 27.11.1999. Ext.P7 Property Register maintained at the jurisdictional Court, shows that the sample reached the Court only on - 07.12.1999. PW7, property clerk of the jurisdictional Court, explained that the articles were initially Crl.A No. 435 of 2007 5 produced before the learned Magistrate, holding charge of the Jurisdictional Court concerned on 28.11.1999, and the same reached the Jurisdictional Court only on 07.12.1999. PW7 was unable to ascertain the name of the official who produced the sample from the learned Magistrate, who was holding charge of the jurisdictional Court. There is no satisfactory explanation on the side of the prosecution as to the delay in producing the properties, including the sample, before the Court. No contemporaneous records were prepared to show that the articles were produced before another Magistrate who was holding charge of the jurisdictional Court. 10. In **Ravi v. State of Kerala & another** (2011(3) KHC 121) 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 Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C or by virtue of any of the Crl.A No. 435 of 2007 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) 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 learned counsel for the appellant further relied on the following circumstances to substantiate that the prosecution failed to establish that the Crl.A No. 435 of 2007 7 contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory. a) The detecting officer has not produced the specimen of the seal stated to have been affixed on the contraband substance seized from the place of occurrence. He has not given evidence as to the nature and description of the seal affixed on the cans allegedly in possession of the accused. b) No sample was drawn at the scene of occurrence by the officer who detected the offence. c) The sample was drawn by an officer of the Court, PW7, as per the instruction of the jurisdictional Magistrate which has no sanction of law. d) The sample was forwarded from the Court on 15.01.2000. But, the same reached the laboratory only on 17.01.2000. The Police Official who delivered the sample in the laboratory was not examined as a witness to establish the tamper-proof despatch of the sample from the Court to the laboratory. Crl.A No. 435 of 2007 8 13. I have gone through Ext.P1 seizure mahazar which does not contain the nature and description of the seal stated to have been used by the detecting officer at the scene of occurrence. He has not produced the specimen seal affixed on the can allegedly possessed by the accused. Production of specimen seal along with the thondi articles is highly required to ascertain the genuineness of the contraband substance produced before the Court. 14. 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. 15. 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 Crl.A No. 435 of 2007 9 commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 16. 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 tamperproof condition. Relying on **State of Rajasthan v. Daulath 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 Crl.A No. 435 of 2007 10 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). 17. 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. 18. Admittedly, the detecting officer had not drawn sample at the scene of occurrence. PW7, the property clerk had drawn the sample and forwarded the same to the Chemical Examiner's laboratory. Drawing the sample and Crl.A No. 435 of 2007 11 sealing the same are acts within the exclusive province of the police official concerned. The learned Magistrate or the officials of the Court undertaking the act of taking the sample from the contraband is irreconcilable. This Court had an opportunity to consider these aspects in **Baburaj v. State of Kerala** [2021 (6) KLT 416], wherein it was held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in **Smithesh v. State of Kerala [2019 (2) KLT 974]** , Crl.A No. 435 of 2007 12 wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In **Baby v. State of Kerala [2020 (2) KLT 590]** , this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” (emphasis supplied) 19. In **Baburaj** (supra) this Court concluded that as the procedure adopted in drawing the sample from the contraband substance has no sanction of law, no evidentiary value can be attached to the Certificate of Chemical Analysis based on the samples drawn. 13 Crl.A No. 435 of 2007 20. 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. 21. 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 58 of the Abkari Act. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE rpk