Sumathi v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 3[RD] DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 CRL.A NO. 738 OF 2008 ``` ``` AGAINST THE JUDGMENT IN SC 712/2006 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANT/ACCUSED:`** ``` SUMATHI W/O. KUNHIRAMAN, PANAMBRA HOUSE,NADUVANNUR, KOYLLANDY,, KOZHIKODE DISTRICT BY ADV K.P.SUDHEER ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, REPRESENTING EXCISE INSPECTOR, BALUSSERY EXCISE, RANGE, BALUSSERY BY SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 03.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 738 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 03.03.2008, passed by the Additional Sessions Court Fast Track (Adhoc-II), Kozhikode in Sessions Case No.712/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 17.03.2004 at 5.45 pm the accused was found in possession of 3 litres of arrack at Karivannoor, 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 ``` CRL.A NO. 738 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** trial court. On the appearance of the accused charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, she 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 P5 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. She pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and to adduce evidence, if any, she 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 her thereunder. The accused was sentenced to undergo simple imprisonment for a term of ``` CRL.A NO. 738 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** one year and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. 6. Heard Sri. K.P. Sudheer, 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 following grounds:- (i)The prosecution failed to prove the identity of the person who was carrying the contraband at the place of occurrence. (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. (ii) The delay in the analysis of the sample has not been properly explained by the prosecution. 8. The seizure was effected by a preventive officer ``` CRL.A NO. 738 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** attached to Excise Range, Balussery, (PW1). PW1 deposed that he found the accused carrying the contraband substance at the place of occurrence and she could not be arrested as no woman police constable was available. PW1 and the other official witness who identified the witness in the Court had no previous acquaintance with the accused. The detecting officer has not narrated any identifying features of the accused in the contemporaneous records prepared at the scene of occurrence. They identified the accused in 2007, after a lapse of three years, in the box. The official witnesses who identified the accused had no opportunity to see the accused after the incident. 9. It is well settled that where a witness identifies an accused who is not known to him in the court for the first time his evidence is absolutely valueless, unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of ``` CRL.A NO. 738 OF 2008 ``` ..6.. observation it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in court **[vide: Kanan and others v. State of Kerala** (AIR 1979 SC 1127) **], Jameel v. State of Maharashtra** [AIR 2007 SC 971] **, Raja v. State by Inspector of Police** [AIR 2020 (SC) 254] **, State (Delhi Administration) v. V.C.Shukla and another** [AIR 1980 (SC) 1382] **, Mohd.Abdul Hafeez v. State of AP** [AIR 1983 (SC) 367]. So on this ground alone the prosecution must fail. 10. The defence challenged the genuineness of the properties produced before the Court. Ext.P1 is the seizure mahazar prepared at the scene of occurrence. In Ext.P1, the detecting officer had not narrated the specific description of the seal used. The seal affixed in Ext.P1 is not legible. PW1 and other official witnesses have not given any evidence as to the nature and description of the seal used at the scene of occurrence. According to PW1, the properties recovered from the scene of occurrence ``` CRL.A NO. 738 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** were produced before PW6, a preventive officer, who was in charge of the Excise Inspector, Balussery Range. PW6 deposed that he obtained the custody of the articles at 8 a.m. on 18.03.2005. PW6 had no idea about the custody of the articles including the sample till the time he received the articles, that is 8 a.m. on 18.03.2005. PW6 further stated that the bottles, containing the sample, were forwarded to the court through Shri. C.K. Baburajan, an excise guard. There is nothing on record to show the date on which the sample reached the Court as the property list had not been produced along with the articles. The prosecution has also not adduced any evidence as to the date on which the sample was forwarded to the laboratory. Shri.K.K. Padmanabhan, an Excise Guard, delivered the sample in the laboratory on 24.03.2004. The sample remained in the custody of Shri. C.K. Baburajan, the excise guard who produced the sample in the court, the property clerk of the court and Shri.K.K. Padmanabhan, another excise guard who ``` CRL.A NO. 738 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** delivered the sample in the laboratory. Those officials were not examined by the prosecution. The prosecution has, therefore, not succeeded in proving the chain of custody of the sample during its transit from the Excise office to the laboratory through the Court. 11. 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. 12. 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 commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. ``` CRL.A NO. 738 OF 2008 ``` ..9.. 13. 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. Daulat 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 performed only if ``` CRL.A NO. 738 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** the said act was shown to have been performed. This Court specified that the presumption under Section 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] **.** 14. 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. 15. In the absence of any evidence to show that the sample drawn at the scene of occurrence was forwarded to the Chemical Examiner’s Laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. 16. Yet another aspect that requires consideration is the delay in the analysis of the sample. The sample ``` CRL.A NO. 738 OF 2008 ``` ..11.. reached the laboratory on 24.03.2004. The sample was analysed only on 12.08.2005. 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.” 17. In the instant case, the delay of 17 months in analysing the sample has not been explained by the prosecution. 18. 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 contraband ``` CRL.A NO. 738 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 19. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. 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. 20. 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 found not guilty of the offence punishable under Section 8(2) of the Abkari Act. ``` CRL.A NO. 738 OF 2008 ``` ..13.. In the result, - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused is acquitted of the charge ; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- **K. BABU, JUDGE** kkj