Suresh v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 4[TH] DAY OF JANUARY 2023 / 14TH POUSHA, 1944** **CRL.A NO. 2035 OF 2008** **AGAINST THE JUDGMENT SC 532/2001 OF ADDITIONAL SESSIONS COURT** **(ABKARI ACT CASES), KOTTARAKKARA** ## **APPELLANT/ACCUSED:** SURESH, S/O KOCHUKUNJU, PUTHEN VEEDU, VELIYAM KIZHAKKEKARA MURI, VELIYAM VILLAGE, KOTTARAKKARA. BY ADVS. SRI.K.V.ANIL KUMAR SRI.P.V.DILEEP ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT.REKHA S, PUBLIC PROSECUTOR SRI.RAJESH A, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2035 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.2035 of 2008 --------------------------------------Dated this the 4[th] day of January, 2023 ## JUDGMENT Aggrieved by the judgment dated 31.12.2007, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara in S.C.No.532/2001, 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.11.1998 at 5.30 p.m, the accused was found in possession of 3 litres of arrack at Kottarakkara, 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, charge was framed against him for the offence punishable under Crl.A No.2035 of 2008 3 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 and 2 and proved Exts.P1 to P6 and MO1. 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. After hearing the arguments addressed on both sides, the Trial Court convicted the accused for the aforesaid offence. 6. Heard Sri.K.V.Anilkumar, 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/accused challenged 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 Crl.A No.2035 of 2008 4 the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (a) The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (b) The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner for comparison. - (c) The custody of the sample during the period from 14.01.1999 to 16.01.1999 has not been explained by the prosecution. 9. The alleged seizure was effected on 18.11.1998. The detecting officer had drawn sample from the contraband seized at the place of occurrence. He has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was not produced before the Court at the time of production of the properties. The detecting officer has not given evidence as to the nature of the seal used. Crl.A No.2035 of 2008 5 10. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner for verification as to the genuineness of the sample produced for analysis. The forwarding note/requisition for sending sample has not been produced and marked. 11. 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. 12. In Rajamma v. State of Kerala [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. 13. In Ramachandran v. State of Kerala [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, Crl.A No.2035 of 2008 6 this Court held that the prosecution could not establish the tamperproof despatch of the sample from the Court to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's Laboratory. 14. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Exhibit P6 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 14.01.1999 of the Judicial First Class Magistrate-II, Kottarakkara. The sample reached the laboratory only on 16.01.1999. The prosecution has not offered any explanation for the delay in the production of the sample before the Chemical Examiner after obtaining the same from the Court. Exhibit P6 shows that an Excise guard by name Sri.Sudhakaran Kani delivered the sample to the laboratory. Neither the property clerk of the Court nor Sri.Sudhakaran Kani was examined as a witness to rule out the possibility of the sample being changed or tampered with. 15. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC 38] held thus: Crl.A No.2035 of 2008 7 “Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.” 16. In the instant case, the prosecution has not succeeded in establishing that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. 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. 18. 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 Crl.A No.2035 of 2008 8 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]}. 19. 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 and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS