T. BALAN v. STATE

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, 1944 CRL.A NO. 1471 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 24.06.2008 IN SC 310/2006 OF ADDITIONAL SESSIONS JUDGE (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` T.BALAN, AGED 36 YEARS, S/O KELU,PORUNANNUR, MANANTHAVADY, WAYANAD DISTRICT ``` ``` BY ADVS. SRI.M.SASINDRAN SRI.K.P.HARISH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE - REP.BY PUBLIC PROSECUTOR, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. SR.P.P ``` ``` THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1471 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1471 of 2008 --------------------------------------------- Dated this the 26[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 24.06.2008, passed by the Additional Sessions Court (Adhoc)-II, Kalpettta in Sessions Case No.310 of 2006, the accused has preferred this appeal. The appellant/ accused was convicted under Section 55(g) 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 20.04.2004, at 6.00 p.m.,the accused was found in possession of about 18 litres of wash meant for manufacturing arrack at Kallampady 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 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was ``` Crl.A.No.1471 of 2007 ``` ``` 3 ``` made over to the 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 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 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.M.Sasindran, 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 seizure of the contraband is ``` Crl.A.No.1471 of 2007 ``` ``` 4 ``` doubtful as the provisions of Section 53A of the Abkari Act has not been followed. (ii) The prosecution failed to establish that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure was effected on 20.04.2004. According to the prosecution, PW1 seized 18 litres of wash from the possession of the accused from the scene of occurrence. The further case of the prosecution is that after taking 500ml of wash as sample, the residue of the wash was destroyed at the scene itself. PW1, while giving evidence stated that he had destroyed the wash in the possession of the accused after taking the sample. 9. It is not necessary for the prosecution to produce the bulk quantity of the seized material before the Court during the trial of the case. As per Section 53A of the Abkari Act, the prosecution can produce the large quantity of the seized contraband before the Authorised Officer for disposal, after preparing an inventory by the Magistrate. 10. The Certificate issued by the Magistrate in respect of the inventory of the contraband substance and the list of the samples drawn before him shall be treated by the Court as primary evidence ``` Crl.A.No.1471 of 2007 ``` ``` 5 ``` of seizure of the material at the scene of occurrence. However, when the procedure contemplated in Section 53A of the Abkari Act is not adopted and the bulk quantity of the liquor is not produced before the Court and no satisfactory evidence is adduced to show that the residue of the contraband substance was destroyed at the scene, the very seizure of the contraband substance as allegedly seized by the prosecution becomes doubtful. In such situation, the accused is entitled to the benefit of doubt. 11. In the present case, there is nothing to show that the procedure as contemplated in Section 53A of the Abkari Act was followed and no satisfactory evidence was adduced before the Court to show that the contraband substance was destroyed at the scene as alleged. The appellant/accused is entitled to the benefit of doubt. This view is fortified by the decision of this Court in **Balakrishna Rai v. State of Kerala (2020 (3) KHC 286)** and **Appachan v. State of Kerala. (2021 KHC 5855)** . 12. The learned counsel for the appellant further contended that the prosecution also failed to establish that the contraband seized from the scene of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 14. The learned counsel relied on the following ``` Crl.A.No.1471 of 2007 ``` ``` 6 ``` circumstances to substantiate his contention:- (a) Ext.P3 seizure mahazar does not contain the nature and description of seal stated to have been affixed on the bottle containing the sample. (b) The officials who handled the sample during its transit from the Court to the laboratory were not examined to establish the tamper proof despatch of the sample. 15. Ext.P3 does not contain the nature and description of seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory to ascertain the genuineness of the sample produced for analysis. 16. 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. 17. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 ``` Crl.A.No.1471 of 2007 ``` ``` 7 ``` Certificate of Chemical Analysis shows that the letter forwarding the sample does not contain the date on which it was forwarded. Ext.P8 would show that that the sample was delivered in the laboratory by Sri.Pramod K.P. on 19.5.2004. The sample remained in the custody of the Property Clerk of the Court and the Excise Guard Sri.K.P.Pramod, who delivered the sample in the laboratory. None of this witnesses were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of the officials who handled sample during its transit from the Court to the Laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** (AIR 1980 SC 1314)]. 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 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. 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 contraband substance said to have been ``` Crl.A.No.1471 of 2007 ``` ``` 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** ]}. 20. 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. 21. 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