Suresh v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 29[TH] DAY OF JUNE 2022 / 8TH ASHADHA, 1944 ``` ``` CRL.A NO. 1609 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 234/2006 OF ADDITIONAL SESSIONS ``` ``` COURT (ADHOC)-II, THODUPUZHA ``` ``` CP 3/2006 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, IDUKKI ``` ## **`APPELLANT/ACCUSED:`** ``` SURESH ``` ``` MOOZHIKKAL HOUSE, PAZHAYARIKANDAM KARA, KANJIKUZHY VILLAGE. ``` ``` BY ADVS. SRI.RENJITH B.MARAR SMT.LAKSHMI.N.KAIMAL ``` ## **`RESPONDENT/STATE:`** ``` STATE OF KERALA ``` ``` PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT.REKHA.S,SR PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 29.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1609 OF 2007 ``` ``` 2 ``` ## **K.BABU, J.** ======================= ## **Criminal Appeal No.1609 of 2007** ======================= Dated this the 29[th] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 14.08.2007, passed by the Additional Sessions Judge, Adhoc-II, Thodupuzha in S.C.No.234/2006, the accused has preferred this appeal. The appellant was convicted under Section 55 (g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 26.08.2004 at 4.p.m., the Circle Inspector of Police, Kanjikuzhi (PW3) found the accused in possession of 630 litres of wash in the forest area near his residence at Ponnidathan. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 55(g) 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. 1609 OF 2007 ``` ``` 3 ``` Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 55(g) 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 6 and proved Exts.P1 to P8, MOs 1 to 3 series and MOs 4 to 7. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence. 6. Heard Sri. B. Renjith Marar, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. ``` CRL.A NO. 1609 OF 2007 ``` ``` 4 ``` 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds: - (i) The prosecution failed to establish the identity of the person, who was allegedly found in possession of wash recovered from the place of occurrence. - (ii) The prosecution failed to establish that the wash allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's laboratory. 8. The alleged seizure was effected by PW3 on 26.08.2004 from the forest area. According to the prosecution, on getting reliable information that the accused was engaged in manufacturing illicit arrack, the police team headed by PW3 proceeded to the place of occurrence. PW3 gave evidence that on seeing the police party, a person found near the place from where the contraband substance was recovered ran away. PW6 the police constable, who had accompanied PW3 gave ``` CRL.A NO. 1609 OF 2007 ``` ``` 5 ``` evidence that he had previous acquaintance with the accused and he could ascertain the person, who was found at the place of occurrence. No independent witness supported the prosecution case. The accused could not be arrested. The identity of the accused was sought to be established with the aid of the oral evidence of PW6, who had accompanied by PW3. According to PW6, he had previous acquaintance with the accused. PW6 has stated that, he had seen the accused when he visited the locality where the accused was residing in connection with an enquiry. PW6 had not given any credible evidence to show that, he had any sufficient opportunity to have acquaintance with the accused prior to the incident. The evidence of PW6 to the effect that he had previous acquaintance with the accused is not acceptable. Therefore, the question to be considered is whether the identification of the accused in the Court by PW3 and PW6 is admissible. PW3 and PW6 identified the accused after a long lapse of three years in the Court. They had only a fleeting glimpse of the accused at the ``` CRL.A NO. 1609 OF 2007 ``` ``` 6 ``` time of occurrence. No test identification parade was conducted in this case. PW3 and PW6 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 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 learned counsel for the appellant further ``` CRL.A NO. 1609 OF 2007 ``` ``` 7 ``` contented that, the prosecution failed to establish the genuineness of the sample produced before the Court and forwarded to the Chemical Examiner's Laboratory. No specimen seal was produced before the Court at the time of production of sample and other articles. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The Detecting Officer has not given evidence as to the nature of the seal used. The sample was produced before the Judicial First Class Magistrate’s Court, Kattappana on 27.08.2007. The articles including the sample were taken from the Judicial First Class Magistrate’s Court, Kattappana and produced before the Judicial First Class Magistrate’s Court, Idukki on 31.08.2007. The sample remained in the custody of the property clerk of the Judicial First Class Magistrate’s Court, Idukki, the Police Official, who delivered the sample in the laboratory and the Police Official who brought the properties from Judicial First Class Magistrate’s Court, Kattappana to Judicial First Class ``` CRL.A NO. 1609 OF 2007 ``` ``` 8 ``` Magistrate’s Court, Idukki. None of those officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 11. Ext.P4 copy of the forwarding note does not contain the name of the Officials with whom the sample was forwarded to the laboratory. The learned Magistrate has not counter-signed Ext. P4. Ext.P6 Certificate of Chemical Analysis shows that the bottles containing the sample were forwarded to the laboratory as per letter dated 03.09.2004 of the Judicial First Class Magistrate’s Court, Idukki. The sample reached the laboratory only on 04.09.2004. The bottles containing the sample were delivered by a Police Constable No. 2153. The non examination of those officials, who handled the sample during its transit from the Court to the laboratory is fatal to the prosecution. 12. 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 ``` CRL.A NO. 1609 OF 2007 ``` ``` 9 ``` of occurrence was the sample tested in the Chemical Examiner's laboratory. 13. 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. 14. 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 Rajastan v. Daulath 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 ``` CRL.A NO. 1609 OF 2007 ``` ``` 10 ``` 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 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]** . 15. 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 ``` CRL.A NO. 1609 OF 2007 ``` ``` 11 ``` 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. 16. In the instant case the prosecution failed to show that the wash allegedly recovered from the possession of the accused was subjected to analysis in the Chemical Examiner's laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 17. Another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 04.09.2004, it was subjected to analysis only on 01.08.2005. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala (2019 KHC 191)** this court 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 ``` CRL.A NO. 1609 OF 2007 ``` ``` 12 ``` 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.” 18. In the instant case, the delay of almost 11 months in analysing the sample has not been explained by the prosecution. 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 entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellant/accused is, therefore, not guilty ``` CRL.A NO. 1609 OF 2007 ``` ``` 13 ``` of the offence alleged. He is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** LU