Sundaresan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 CRL.A NO. 2195 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 05.09.2008 IN SC 1142/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-I, KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` SUNDARESAN,S/O THANKAPPAN, THODIYIL KIZHAKKATHIL VEEDU, KANATHAR KUNNAM MURI,, WEST KALLADA VILLAGE, KOLLAM DISTRICT. ``` ``` BY ADV B.MOHANLAL ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY EXCISE RANGE INSPECTOR, SASTHAMCOTTA EXCISE, RANGE, KOLLAM DISTRICT THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 06.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2195 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2195 of 2008 --------------------------------------------- Dated this the 6[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 05.09.2008, passed by the Additional District and Sessions Court-I (Adhoc), Kollam in Sessions Case No.1142/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 29.04.2004 at 6.30 p.m., the appellant/accused was found in possession of 6 litres of arrack at the southern side of the road on the eastern side of Railway Over bridge, Kanathan Kunnu Muri, Padinjara Kallada, Kunnathoor Taluk 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 ``` Crl.A.No.2195 of 2008 ``` ``` 3 ``` 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 to4 and proved Exts. P1 to P9 and MO 1. 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) the Abkari Act and convicted him thereunder. 6. Heard Sri. B.Mohan Lal, 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:- (1) The prosecution failed to establish ``` Crl.A.No.2195 of 2008 ``` ``` 4 ``` that the contraband substance seized from the possession of the accused was produced before the Court. (2) The prosecution has also failed to prove that the sample subjected to analysis in the Chemical Examiner’s Laboratory was the very same substance recovered from the place of occurrence. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (1) The prosecution has not offered any explanation for the inordinate delay in the production of the properties, including the sample, before the Court. (2) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (3) Ext.P8, the copy of the forwarding ``` Crl.A.No.2195 of 2008 ``` ``` 5 ``` note is silent regarding the name of the person with whom the sample was forwarded to the laboratory. (4) The officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. The alleged seizure was on 29.04.2004. The properties, including the sample, were produced before the Court only on 03.05.2004, as is evident from Ext.P7 report submitted by the Excise Inspector PW3. The prosecution has not offered any explanation for the delay in the production of 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 thus: “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 ``` Crl.A.No.2195 of 2008 ``` ``` 6 ``` be reported forthwith to the Court. But we hasten to add that 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.” 11. 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. 12. 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. 13. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample ``` Crl.A.No.2195 of 2008 ``` ``` 7 ``` produced in 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)}. 14. Ext.P8, copy of the forwarding note is silent regarding the name of the person with whom the sample was sent to the laboratory. Ext.P8 does not contain the date on which the sample was forwarded to the laboratory. The learned Magistrate who counter singed Ext.P8 missed to mention the date on which he put the initials. While considering a similar fact situation, this Court, in **Kumaran v. State of Kerala** [2016 (4) KLT 718], held thus: “7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the ``` Crl.A.No.2195 of 2008 ``` ``` 8 ``` date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” 15. In the present case, the Property Clerk and the Excise official concerned were not examined by the prosecution. 16. The sample remained in the custody of the Property Clerk of the Court and Sri.V.Sasikumar, the Excise official who delivered the sample to the laboratory. These officials were not examined by the prosecution. 17. 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 ``` Crl.A.No.2195 of 2008 ``` ``` 9 ``` same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 18. A legal obligation is cast on the prosecution to prove that 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. 19. 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. 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 ``` Crl.A.No.2195 of 2008 ``` ``` 10 ``` 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 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)** . 20. The non-examination of the officials, who handled the sample during its transit from the Court to the laboratory, is fatal to the prosecution. As the prosecution failed to rule out the possibility of the sample being changed or tampered with during the course of its transit. The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. Therefore, Ext.P9 has no evidentiary value. 21. 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 ``` Crl.A.No.2195 of 2008 ``` ``` 11 ``` 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. 22. 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]}. 23. 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. 24. 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