Susanth and Manzoor v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 ``` ``` CRL.A NO. 1657 OF 2008 ``` ``` AGAINST THE JUDGMENT IN S.C.No.494/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE ``` ## **`APPELLANTS:`** ``` 1SUSANTH, S/O SUDHAKARAN, KACHIKKUNNUMMAL, PANAGAD AMSOM, DESOM, KOYILANDY, ``` ``` 2MANZOOR, S/O IMBICHI MOIDI CHOORATHODI VAYALIL,, ADVIDANALLUR AMSOM,POONATH DESOM., KJOYILANDY. ``` ``` BY ADVS. R.SUDHISH M.MANJU ``` ## **`RESPONDENT:`** ``` STATE OF KERALA ``` ``` REPRESENTING EXCISE INSPECTOR,, KOZHIKODE EXCSE RANGE,, REPRESENTED BY THE PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ``` SMT. REKHA.S. (SENIOR PUBLIC PROSECUTOR) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` **Crl.Appeal No.1657 of 2008** **2** ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.1657 of 2008 --------------------------------------Dated this the 17[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 02.07.2008 passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in Sessions Case No.494/2005, the two accused have preferred this appeal. The appellants/accused were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of 3 years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that on 19.11.2001 at 9.00 pm, the accused were found in possession of 35 litres of arrack in a can in an auto-rickshaw bearing Reg.No.KL-10-1592 in violation of the provisions of the Abkari Act. Accused No.1 was driving the autorickshaw and the other accused was travelling in the back seat. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made **Crl.Appeal No.1657 of 2008** **3** over to the trial Court. On the appearance of the accused charges were framed against them for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, they came to be tried by the trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they 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 them thereunder. 6. Heard Sri.Sudhish R., the learned counsel appearing for the appellants/accused and Smt.Rekha S. the learned Senior Public Prosecutor appearing for the respondent. **Crl.Appeal No.1657 of 2008** **4** 7. The judgment of conviction and sentence is challenged on the ground that 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. 8. The learned counsel for the appellants contended that the prosecution has not succeeded in proving the genuineness of the sample produced before the Court. It is submitted that, as the specimen seal used by the detecting officer was not produced before the Court, the officer concerned of the Court could not ascertain the genuineness of the sample produced. In Ext.P1 seizure mahazar, the detecting officer has narrated that he had used his personal seal. PW1, the Excise Inspector, Kozhikode Excise range, has not given evidence as to the nature of the description of the seal stated to have been affixed on the bottle containing the sample. 9. The property list has not been produced and marked in this case. There is no evidence as to the person who received the properties, including the sample, in the Court. There is also no evidence to show the date on which the sample was forwarded to the laboratory. The sample reached the laboratory on 17.12.2001. The officer of the Court who was the custodian of the sample was not **Crl.Appeal No.1657 of 2008** **5** examined by the prosecution. The sample was delivered in the laboratory by an Excise guard by name Abdul Illah P.T. He was also not examined as a witness. The prosecution has not adduced any evidence as to whether the specimen of the seal used on the bottles containing the sample was forwarded to the laboratory. Ext.P4, the copy of the forwarding note, does not contain legible specimen seal. The non-examination of the property clerk of the Court and Sri.Abdul Illah P.T., the Excise guard who delivered the sample in the laboratory is fatal to the prosecution. 10. 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. 11. 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 **Crl.Appeal No.1657 of 2008** **6** reaches the laboratory is required to be established by the prosecution. 12. 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 reemphasized 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 S. 114(e) of the Evidence Act has no application in **Crl.Appeal No.1657 of 2008** **7** 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). 13. 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. 14. 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. 15. In the present case, the prosecution has not succeeded in showing that the arrack allegedly recovered from the place of occurrence eventually reached the Court and came to be examined in the laboratory to form the basis of Ext.P5 Certificate of Chemical Analysis. This conclusion is mainly on the reason that there was no **Crl.Appeal No.1657 of 2008** **8** evidence to show that the specimen of the seal used was produced before the Court and forwarded to the Chemical Examiner's Laboratory and further that the prosecution has not succeeded in proving that the sample remained in the custody of the officials concerned of the Court and the Excise guard who delivered the same in the laboratory in a tamper proof condition. Therefore, Ext.P5 Certificate of Chemical Analysis has no evidentiary value. 16. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 17. 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]}. **Crl.Appeal No.1657 of 2008** **9** 18. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused are acquitted of the offence alleged under Section 8(2) of the Abkari Act. They are set at liberty. The appeal is allowed as above. Sd/K.BABU JUDGE AJ