Sugadhan v. State of Kerala (Criminal Appeal No. 1519 of 2007)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 30[TH] DAY OF MAY 2022 / 9TH JYAISHTA, 1944** **CRL.A NO. 1519 OF 2007** **AGAINST THE CONVICTION AND SENTENCE IN SC NO.1401 OF 2001 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE FOR TRIAL OF ABKARI ACT CASES, NEYYATTINKARA DATED** **20/07/2007** ## **APPELLANT/ACCUSED:** **SUGADHAN, S/O. MOORTHINGA PANICKER, PUTHENDANAM ALUVILA VEEDU, KATTACHALKUZHY DESOM,, VENGANOOR VILLAGE, THIRUVANANTHAPURAM.** **BY ADV G.SUDHEER** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** ## **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 30.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1519 of 2007** **2** ## **`JUDGMENT`** ## **`Dated this the 30[th] day of May, 2022`** ``` Aggrieved by the judgment dated 20.07.2007 passed by the Additional Sessions Court for the Trial of Abkari Act Cases, Neyyattinkara in S.C.No.1401/2001, the accused has preferred this appeal. The appellant was convicted under Section 58 of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1 Lakh. ``` ``` 2.The prosecution case is that on 05.05.1999 at 05.45 p.m., the appellant/accused was found in possession of 3 litres of illicit arrack in a 5 litre Can on the public road at Venganoor. ``` ``` 3.After completing the investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the jurisdictional Magistrate. The case was committed to the ``` **CRL.A.No.1519 of 2007** **3** ``` 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. ``` ``` 4.The prosecution examined PWs 1 to 8 and proved Exts.P1 to P9 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 58 of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a ``` **CRL.A.No.1519 of 2007** **4** ``` period of one year and pay a fine of Rs.1 lakh under Section 58 of the Abkari Act. ``` ``` 6.Heard Sri.G.Sudheer, the learned counsel appearing for the appellant and Smt.Rekha.S, the learned Senior Public Prosecutor for the respondent. ``` ``` 7.The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution has not succeeded to establish that the contraband substance allegedly seized the possession of the accused was produced before the Court without any tamper and the same reached the Chemical Examiner's laboratory. ``` ``` 8.The learned counsel for the appellant relied on the following circumstances to substantiate his contention:- ``` ``` (a)There is nothing to show that the specimen of the seal used by the detecting officer at the scene of occurrence was produced before the Court to ensure the genuineness of the articles produced before the ``` **CRL.A.No.1519 of 2007** **5** ## `Court.` - `(b) The act of the learned Magistrate in drawing the sample with the aid of the property clerk has no sanction of law.` ``` 9.The alleged seizure was effected on 05.05.1999 by the Excise Inspector of Excise Enforcement Anti Narcotic Special Squad, Thiruvananthapuram. The detecting officer (PW4) has not narrated the nature and description of the seal stated to have been affixed on the Can containing the illicit liquor at the scene of occurrence. He has also not given convincing evidence as to the nature of the seal used. No specimen seal was produced before the Court to ensure the genuineness of the articles produced before the Court. The property clerk of the Court (PW5) gave evidence that she received the contraband substance contained in the Can at the Court. She has made it clear that no specimen of the seal was produced before the Court at the time of production of the articles. She would further state that the impression of the ``` **CRL.A.No.1519 of 2007** **6** ``` seal affixed on the Can was not incorporated in any of the contemporaneous records produced before the Court by the detecting officer. ``` `10. The detecting officer has to give evidence as to the nature of the seal affixed on the contraband substance. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court to satisfy the genuineness of the articles produced before the Court.` {Vide: _**Bhaskaran K.**_ _**v. State of Kerala and another**_ (2020 KHC 5296), _**Achuthan v. State of Kerala**_ [2016(1) KLD 391], _**Krishnadas v. State of Kerala**_ (2019 KHC 191)}. ``` 11. In the present case, there is absolutely no evidence to convince the Court that the specimen impression of the seal used by the detecting officer at the scene of occurrence was produced before the Court. The necessary inference is that the prosecution failed to establish the genuineness of the contraband substance produced before the Court. ``` **CRL.A.No.1519 of 2007** **7** `12. Admittedly, the detecting officer had not drawn the sample from the bulk quantity of the liquor seized from the place of occurrence. PW5, the property clerk of the Court, had drawn the sample as per the instructions of the learned Magistrate. This is not a procedure established by law.` While dealing with this subject, this Court in _**`Baburaj`**_ ## _**`v. State of Kerala [2021 (6) KLT 416]`**_ _`),`_ `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], 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.`_ **CRL.A.No.1519 of 2007** **8** ``` 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.” ``` ``` 13. In Baburaj (supra), this Court held that as the procedure adopted in drawing sample from the contraband substance by the property clerk of the Court has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis obtained based on the sample so drawn. As the act of drawing sample by the property clerk of the Court as per the instructions of the learned Magistrate is not a 'due process', Ext.P7 Certificate of Chemical Analysis prepared based on the sample so drawn by PW5 has no evidentiary value. ``` ``` 14. 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 ``` **CRL.A.No.1519 of 2007** **9** ``` co-related. ``` ``` 15. It is well 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 bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so, when the sample might have changed several hands before it reached the hands of the Chemical Examiner. {Vide:State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Valsala v. State of Kerala (1993 KHC 798), Sathi v. State of Kerala [2007 (1) KHC 778]}. ``` ``` 16. 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. Resultantly, the accused is entitled to the benefit of doubt arises from the absence of link evidence and the other circumstances discussed. ``` **CRL.A.No.1519 of 2007** **10** ``` 17. 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 ``` ``` NR/30/05/2022 ```