Sreenivasan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 8[TH] DAY OF JUNE 2022 / 18TH JYAISHTA, 1944 CRL.A NO. 2642 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 16.06.2008 IN SC 413/2006 OF ADDITIONAL SESSIONS COURT (ADHOC) III, MANJERI CP 75/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,NILAMBUR APPELLANT/ACCUSED: ``` ``` SREENIVASAN,S/O RAMAN AGED 40 YEARS EDAKANDATHIL VEEDU, MURINGAMUNDA. BY ADV SUNIL KUMAR A.G ``` ## **`RESPONDENT:`** ``` STATE OF KERALA,REP.BY PREVENTIVE OFFICER OF EXCISE RANGE NILAMBUR, THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2642 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2642 of 2008 --------------------------------------------- Dated this the 8[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 16.06.2008, passed by the Additional Sessions Court, Fast Track Court-III (Adhoc), Manjeri in Sessions Case No.413/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.02.2004, the accused was found in possession of 5 litres of illicit arrack in a black plastic can 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 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 Section 8(2) of the Abkari Act. The accused pleaded not guilty to ``` Crl.A.No.2642 of 2008 ``` ``` 3 ``` 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 P10 and MO1. 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 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. A.G.Sunil Kumar, 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 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the possession of the accused reached the Court in a tamper proof condition and the same was subjected to ``` Crl.A.No.2642 of 2008 ``` ``` 4 ``` chemical analysis in the laboratory. 8. The alleged seizure and arrest were effected by the Preventive Officer, Excise Range, Nilambur (PW1). He arrested the accused from the place of occurrence and seized the articles in the possession of the accused. The accused was produced before the Court by the Excise Range Inspector, Nilambur (PW5). 9. The learned counsel for the appellant contended that the prosecution has not succeeded in explaining the custody of the sample during the period from 18.02.2004 to 20.02.2004. PW1, the detecting officer gave evidence that the properties recovered and the documents prepared at the scene of occurrence were produced before PW5, the Excise Range Inspector along with the accused. PW5 stated that on 18.02.2004, he produced the properties before the Court. 10. PW6, the then Judicial Magistrate of First Class, Nilambur, deposed that the properties, including the sample, were produced before the Court on 18.02.2004, but were returned to the Excise officials. The learned Magistrate further gave evidence that on 20.02.2004, the properties were again produced before the Court. The learned Magistrate made it clear that the properties were produced before the Clerk concerned. The specific case of the Excise Inspector, (PW5) is that the properties remained in the ``` Crl.A.No.2642 of 2008 ``` ``` 5 ``` custody of the Court during the period from 18.02.2004 to 20.02.2004. Going by the evidence of the learned Magistrate, it is very much clear that the properties, including the sample, were returned to the Excise official who produced the accused before him. The necessary inference is that the properties during the period from 18.02.2004 to 20.02.2004 were in the custody of the Excise officials. The prosecution was not able to lead evidence as to who was in custody of the properties during the period from 18.02.2004 to 20.02.2004. The prosecution has also not given evidence as to the date on which the sample was forwarded to the laboratory. 11. Ext.P7 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 18.02.2004 of the Judicial First Class Magistrate of Nilambur. The learned Magistrate who was examined as a witness deposed that he had made an endorsement on 18.02.2004 itself. The learned Magistrate further stated that the sample was thereafter produced before the Court on 20.02.2004. Therefore, it is probable that the sample was forwarded to the laboratory during the period between 20.02.2004 to 01.03.2004. Ext.P7 shows that the sample was handed over to the laboratory by Sri.K.Vasudevan, an Excise Guard on 01.03.2004. It is the duty of the prosecution to establish that ``` Crl.A.No.2642 of 2008 ``` ``` 6 ``` the sample remained in the safe custody of the officials concerned and the same was forwarded to the laboratory in a tamper proof condition. The delay in bringing the sample in the laboratory after the same was forwarded has not been satisfactorily explained by the prosecution. 12. The sample remained in the custody of the Property Clerk of the Court, the Excise official who produced the articles including the sample before the learned Magistrate, the Excise officials who produced the sample before the Court and Sri. K.Vasudeavan, the Excise Guard who handed over the sample in the laboratory. The various officials who handled the sample during its transit from the place of occurrence to the Court and from the Court to the laboratory were not examined by the prosecution to establish that the sample remained intact. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 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 ``` Crl.A.No.2642 of 2008 ``` ``` 7 ``` the contraband substance allegedly seized from the possession 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 it 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-proof 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 further held that Courts could presume that an official act was regularly and properly ``` Crl.A.No.2642 of 2008 ``` ``` 8 ``` 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)** . 16. The prosecution failed to prove that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 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. 17. 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],** ``` Crl.A.No.2642 of 2008 ``` ``` 9 ``` ## **Sasidharan v. State of Kerala [2007 (1) KHC 275]}** . 17. Yet another aspect that requires consideration is the delay in the analysis of sample. Though the sample reached the laboratory on 01.03.2004, it was subjected to analysis only on 20.10.2005. On the question of delay in the analysis of the sample, this Court in **Krishnadas v. State of Kerala (2019 KHC** ## **191)** held thus: “6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.” 18. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 19. 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 ``` Crl.A.No.2642 of 2008 ``` ``` 10 ``` discussed above. 20. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK