State of Kerala v. Surendran Nair and Manoharan

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 CRL.A NO. 738 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 18.04.2007 IN SC 1704/2004 OF ADDITIONAL DISTRICT & SESSIONS COURT (FAST TRACK-I), ``` ## **`THIRUVANANTHAPURAM`** ``` IN CP NO.55/2004 OF THE JUDICIAL FIRST CLASS MAGISTRATE COURT- II, ATTINGAL IN CRIME NO.1/03 OF VAMANAPURAM EXCISE RANGE. ``` ## **`APPELLANT/ACCUSED NO.2:`** ``` MANOHARAN, S/O NARAYANA PILLAI, THACHANVILAKATHU VEEDU, PLAVILA, THIRUMALA VILLAGE, THIRUVANANTHAPURAM DISTRICT. ``` ``` BY ADV SRI.C.C.THOMAS (SR.) ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA, REPRESENTED BY EXCISE INSPECTOR, VAMANAPURAM EXCISE RANGE, THIRUVANANTHAPURAM DISTRICT, REPRESENTED BY, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 22.08.2022, ALONG WITH CRL.A.762/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.738 & 762 of 2007 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 22[ND] DAY OF AUGUST 2022 / 31ST SRAVANA, 1944 CRL.A NO. 762 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 18.04.2007 IN SC 1704/2004 OF ADDITIONAL DISTRICT AND SESSIONS COURT (FAST TRACK-I), THIRUVANANTHAPURM ``` ``` IN CP 55/2004 OF JUDICIAL FIRST CLASS MAGISTRATE COURT-II, ATTINGAL IN CRIME NO.1/2003 OF VAMANAPURAM EXCISE RANGE APPELLANT/ACCUSED NO.1: ``` ``` SURENDRAN NAIR, S/O.KRISHNA PILLAI, GEETHA BHAVAN, VAYYAKAVU,PULLAMPARA VILLAGE. ``` ``` BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV SMT.REKHA S., (SR.PP) ``` ``` THIS CRIMINAL APPEAL HAVING BEING HEARD ON 22.08.2022, ALONG WITH CRL.A.738/2007, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.738 & 762 of 2007 ``` ``` 3 ``` ## **K.BABU, J.** ------------------------------------------- Crl.A Nos. 738 & 762 of 2007 --------------------------------------------- Dated this the 22[nd] day of August, 2022 ## **JUDGMENT** These two appeals are directed against the judgment dated 18.04.2007 passed by the Additional District and Sessions Court (Fast Track-I), Thiruvananthapuram in S.C.No.1704/2004. Accused No.1 is the appellant in Crl.A.No.762/2007. The appellant in Crl.A.No.738/2007 is accused No2. Accused Nos. 1 and 2 were convicted under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that the appellants and the other accused in the case (A3) were found in possession of 105 litres of spirit in three cans and 240 litres of Toddy in eight cans in the house bearing No.5/338 of Pullampara Panchayath in the Thiruvananthapuram district. 3. The initial investigation was conducted by the Circle Inspector of Excise, Nedumagad (PW9). PW10 completed the investigation and submitted final report against the appellants ``` Crl.A.No.738 & 762 of 2007 ``` ``` 4 ``` and other accused alleging offence punishable under Section 55(a) of the Abkari Act. 4. 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 accused Nos.1 and 2 for the offence 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. At the close of the trial the appellants/accused Nos. 1 and 2 were convicted and accused No.3 was acquitted. 6. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 7. The learned counsel for the appellants relied on the following circumstances to substantiate his contention: (a) The delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (b) Ext.P1 seizure mahazar does not contain the ``` Crl.A.No.738 & 762 of 2007 ``` ``` 5 ``` specimen of the seal stated to have been affixed on the bottles containing the sample. (c) The specimen of the seal was not forwarded to the Chemical Examiner’s Laboratory for verification. 8. The alleged seizure was effected on 04.01.2003 at 11.000 a.m., by PW10. According to the PW10, he had drawn three samples from the spirit contained in the three cans and one sample from one of the cans containing toddy. He had prepared Ext.P1 seizure mahazer to evidence seizure of the contraband. 9. The properties including the sample were produced before the Court only on 06.01.2003. The prosecution has not offered any satisfactorily explanation for the delay of two days in bringing the properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [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 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 ``` Crl.A.No.738 & 762 of 2007 ``` ``` 6 ``` 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. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court to ensure the genuineness of the sample produced before the Court. 13. In **Bhaskaran v. State of Kerala MANU/KE/0606/2019 : (2019 (3) KLT SN 34 (C. No.49) : 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 ``` Crl.A.No.738 & 762 of 2007 ``` ``` 7 ``` 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. Ext.P8, the forwarding note/requisition for sending sample to the Laboratory does not contain the specimen of the seal used by the detecting officer. The prosecution has not adduced any evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory to ascertain the genuineness of the sample produced for analysis. The space meant for incorporating the specimen seal in Ext.P8 remained vacant. 15. In **Rajamma v. State of Kerala (MANU/KE/0056/2014 : 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. 16. PW11, the Property Clerk of the Court gave evidence that she had broken the seal on the bottles containing the sample and affixed the seal of the Court while forwarding the sample to the Laboratory. There is also no evidence to show that ``` Crl.A.No.738 & 762 of 2007 ``` ``` 8 ``` the specimen of the seal subsequently affixed by the Property Clerk in the Court, was forwarded to the Chemical Examiner's Laboratory to verify the genuineness of the sample produced for examination. Therefore, the certification in the of Chemical Analaysis report (Ext.P12) to the effect that the seals on the bottles were intact and found tallied with the sample seal cannot be accepted. This is a case in which the custodian of the sample before the Court admitted that she had broken the seals on the bottles containing the sample, the reason for which is not available. Therefore, the possibility of the sample being changed or tampered with during the course of its transit from the place of occurrence to the Laboratory through the Court could not be ruled out by the prosecution. 17. On the link evidence to be established by the prosecution, this Court in **Baburaj v. State of Kerala [2021 (6) KLT 416]** held thus: “22.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. 23. 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 tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence ``` Crl.A.No.738 & 762 of 2007 ``` ``` 9 ``` to the stage when the contraband reaches the laboratory is required to be established by the prosecution.” 18. In the instant case the prosecution failed to establish that the contraband seized at the scene of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. 19. Therefore, Ext.P12 Certificate of Chemical Analysis has no evidentiary value. 20. 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. 21. 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]}. ``` Crl.A.No.738 & 762 of 2007 ``` ``` 10 ``` 22. 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 appellants/accused Nos.1 and 2 are entitled to the benefit of doubt. 23. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused Nos.1 and 2 are acquitted of the offence alleged. They are set at liberty. These appeals are allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK