Sudhan @ Sudhakaran v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 20[TH] DAY OF MARCH 2024 / 30TH PHALGUNA, 1945 CRL.A NO. 270 OF 2010** **AGAINST THE JUDGMENT DATED 05.02.2010 IN SC NO.1426 OF 2004** **OF ASSISTANT SESSIONS COURT, NEYYATTINKARA APPELLANT/ACCUSED:** **SUDHAN @ SUDHAKARAN, AGED 58, S/O.NEELAKANDA PILLAI, KIZHAKKEKUNNUVILAVEEDU, THOZHUKKAL DESOM, PERUMPAZHATHOOR VILLAGE. BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL** **RESPONDENT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.270 of 2010 2 ## K.BABU, J. --------------------------------------- Criminal Appeal No.270 of 2010 --------------------------------------Dated this the 20[th] day of March, 2024 ## JUDGMENT Aggrieved by the judgment dated 05.02.2010, passed by the Assistant Sessions Court, Neyyattinkara in S.C.No.1426/2004, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 12.10.2002 at 07.30 p.m, the accused was found in possession of one litre of arrack in a plastic bottle along with a glass tumbler and three bottles of arrack kept in a bag at Thozhukkal Desom in Perumpazhuthoor village 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 Crl.A No.270 of 2010 3 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 the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MOs 1 to 3. 5. After the closure of the prosecution evidence, 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. On the side of the defence, DW1 was examined and Exhibits D1 to D3 were marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. Crl.A No.270 of 2010 4 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) The prosecution failed to establish the genuineness of the contraband substance allegedly seized from the place of occurrence produced before the Court. - (ii) The act of the property clerk drawing the sample from the contraband produced before the Court has no sanction of law. 9. The alleged seizure was effected on 12.10.2002. The detecting officer sealed the bottles containing the contraband substance and produced before the Court on 13.10.2002. The specimen of the seal used by the detecting officer had not been produced before the Court. Exhibit P1 seizure mahazar does not Crl.A No.270 of 2010 5 contain the nature and description of the seal used by the detecting officer. 10. 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. The necessary conclusion is that the prosecution failed to establish the genuineness of the arrack produced before the Court. 11. The detecting officer had not drawn the sample at the scene of occurrence. PW5, the property clerk stated that she had drawn the sample from the bulk quantity of the arrack produced before the Court. The legality of the act of drawing the sample by the property clerk was considered by this Court in Baburaj v. State of Kerala [2021 (6) KLT 416]. In Baburaj this Court 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 Crl.A No.270 of 2010 6 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], 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.” 12. In Baburaj (surpa) this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis prepared based on the sample so drawn. The resultant conclusion is that Ext.P4 Certificate of Chemical Analysis has no evidentiary value. Crl.A No.270 of 2010 7 13. 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. 14. 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] }. 15. 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. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 16. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital Crl.A No.270 of 2010 8 aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS