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High Court of KeralaSingle JudgeAppellants acquitted; conviction and sentence s...

Thankamony Amma and Gangadhara Kurup v. State of Kerala

Case / Petition Number:CRL.A No.1258 of 2007

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Babu
Judgment Date
2024-01-15
Court Decision / Holding
Appeal allowed; conviction and sentence set aside; accused acquitted; set at liberty; any deposited amounts to be disbursed as per law.
Final Disposition
Appellants acquitted; conviction and sentence set aside; case disposed of.

Parties to the Case

Appellants / Petitioners

  • Thankamony Amma
  • Gangadhara Kurup

Respondents

  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri R. Padmakumar
  • • Sri R. T. Pradeep

Counsels for Respondents

  • • Sri G. Sudheer, Public Prosecutor

Case Synopsis & Summary

This is a criminal appeal by Thankamony Amma and Gangadhara Kurup challenging a conviction under Abkari Act sections 8(2) and 55(g) by the Additional Sessions Court, Fast Track (Ad hoc), Mavelikkara, in Sessions Case No.456 of 2003. The trial court found both accused guilty of storing 40 litres of wash at their residence on 10.09.2001 and sentenced them to three years’ rigorous imprisonment and a fine of Rs. 1 lakh each. On appeal, their counsel contended that the prosecution failed to establish the essential link between the contraband seized and its chemical examination, a prerequisite for sustaining a conviction under the Abkari Act. The defence highlighted defects: seizure mahazar Ext.P3 does not contain the specimen seal used at the scene; there is no forwarding note showing verification with the Chemical Examiner; the sample reached the lab only on 18.09.2001; the guarding official and property clerk were not examined. The court relied on Bhaskaran v. State of Kerala (2020 KHC 5296), Rajamma v. State of Kerala (2014 (1) KLT 506), and Ramachandran v. State of Kerala (2021 (1) KLT 793) to stress that absence of a specimen seal, missing forwarding notes, and failure to prove tamper-proof despatch undermine the evidentiary value of chemical analysis. The result is that the prosecution failed to prove the chain of custody and connection to the accused; hence the conviction cannot stand, and the appeal is allowed with acquittal.

Provisions of Law Cited

Abkari Act, Sec. 8(2) and Sec. 55(g)Cr.P.C. Sec. 313Cr.P.C. Sec. 232

Legal Doctrines & Maxims

  • Chain of custody / linking seizure to chemical analysis
  • Tamper-proof despatch of sample to laboratory
  • Seal/genuineness of sample; requirement to produce seal specimen in court
  • Evidentiary value contingent on proper link between sample and accused

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants’ counsel submitted that the prosecution failed to establish the chain of custody and the link between the contraband seized from the place of occurrence and its chemical examination. The seizure mahazar Ext.P3 did not include the specimen seal used at the place of occurrence, and there is no evidence showing that the forwarding note containing the specimen seal was forwarded to the Chemical Examiner for verification. Although the sample was forwarded on 14.09.2001, it reached the laboratory only on 18.09.2001, and the sample was delivered by a guard who has not been examined. The property clerk and the guard were not examined as witnesses, undermining the chain of custody. In Bhaskaran v. State of Kerala (2020 KHC 5296) and Rajamma v. State of Kerala (2014 (1) KLT 506), it was held that the specimen seal must be produced and the forwarding process must be established; without this, the Chemical Analysis Report has no evidentiary value. Ramachandran v. State of Kerala (2021 (1) KLT 793) further held that failure to prove tamper-proof despatch breaks the link between seizure and laboratory analysis. In this case, Ext.P7 has no evidentiary value and the prosecution failed to connect the contraband to the accused; therefore the conviction cannot stand.

Contentions of Respondents

The State’s counsel contends that the prosecution evidence, including Ext.P7 Certificate of Chemical Analysis and the forwarding of the sample in compliance with the JMFC’s order, sufficiently linked the accused to the contraband. The absence of the specimen seal in Ext.P3 and the forwarding note do not, in isolation, vitiate the evidence when other documentary and testimonial materials corroborate the chain of custody. While the defence emphasizes missing seals and forwarding notes, the totality of evidence—including the laboratory receipt and authenticity of the report—supports the inference that the contraband underwent analysis and was linked to the accused. The Court should consider the entire record rather than one technical lapse, and may still uphold conviction if the evidence read as a whole demonstrates guilt beyond reasonable doubt.

Cited Precedents (3)

Case NameCitationTreatmentExplanation
Bhaskaran v. State of Kerala2020 KHC 5296PositiveThe court cites this decision to emphasize that the seal used by the detecting officer must be described in the seizure mahazar, and the specimen seal must be produced to verify genuineness of the sample; noncompliance undermines admissibility of the sample evidence.
Rajamma v. State of Kerala2014 (1) KLT 506PositiveThe court cites this case to hold that if the specimen of the seal is not produced and the forwarding to the Chemical Examiner is not verified, the Chemical Analysis Report has no evidentiary value.
Ramachandran v. State of Kerala2021 (1) KLT 793PositiveThe court relies on this decision to stress that if there is no satisfactory link showing tamper-proof despatch of the sample to the lab, the prosecution cannot establish that the same sample reached the laboratory.

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Extracted Judgment Text

Exact text extracted from official judgment records.

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 15[TH] DAY OF JANUARY 2024 / 25TH POUSHA, 1945 CRL.A NO. 1258 OF 2007 ``` ``` AGAINST THE JUDGMENT SC 456/2003 OF ADDITIONAL DISTRICT & SESSIONS COURT-II , MAVELIKKARA ``` ## **`APPELLANT/ACCUSED 1 AND 2:`** ``` 1THANKAMONY AMMA, AGED 42 YEARS, W/O GANGADHARA KURUP, GANGA NIVAS,, PANAYIL, PALAMEL VILLAGE, MAVELIKARA. 2GANGADHARA KURUP AGED 52 YEARS, -DO- -DO-. BY ADVS. SRI.R.PADMAKUMAR SRI.R.T.PRADEEP ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM. BY G SUDHEER,PP ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl.A.No.1258 of 2007 ..2.. ## **K. BABU, J** ## **------------------------------------------------Crl Appeal No.1258 of 2007 ------------------------------------------------Dated this the 15[th] day of January, 2024** Aggrieved by the judgment dated 27.06.2007 passed by the Additional Sessions Court, Fast Track (Ad hoc), Mavelikkara in Sessions Case No.456 of 2003, the accused have preferred this appeal. The appellants were convicted under Sections 8(2) and 55(g) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs. One Lakh. 2. The prosecution case is that on 10.09.2001 at 05.30 p.m., the accused were found to have stored 40 litres of wash at their house bearing No.X/115 of Palamel Village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2) and 55(g) of the Abkari Act before the jurisdictional Magistrate. The case was Crl.A.No.1258 of 2007 ..3.. committed to the Sessions Court from where it was made over to the trial Court. On the appearance of the accused charges were framed against them for the offences punishable under Sections 8(2) and 55(g) 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 P7 and MO1. 5. After the closure of evidence on behalf of the prosecution, 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. Ext. D1 was marked on the side of the defence. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences under Crl.A.No.1258 of 2007 ..4.. Sections 8(2) and 55(g) of the Abkari Act and convicted him thereunder. 6. Heard Sri.R.Padmakumar,, the learned counsel appearing for the appellants/accused and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i)The seizure mahazar does not contain the specimen seal used at the place of occurrence. (ii)There is no evidence to show that the forwarding note which contains specimen Crl.A.No.1258 of 2007 ..5.. seal was forwarded to the Chemical Examiner‘s Laboratory for verification to ensure the genuineness of the sample. (iii)Though the sample was forwarded to the laboratory on 14.09.2001 it reached the laboratory on 18.09.2001. 9. The alleged seizure was effected on 10.09.2001. The Detecting Officer prepared Ext.P3 seizure mahazar at the scene of occurrence. I have gone through Ext.P3. Ext.P3 does not contain the specimen of the seal used by the Detecting Officer. 10. The forwarding note prepared by the Investigating Officer requesting to send the sample for chemical examination has not been marked. 11. It is seen from Ext.P7 Certificate of Chemical Analysis that the sample was forwarded as per letter dated 14.09.2001 of the Judicial Magistrate of First Class, Mavelikkara. Ext.P7 further shows that the sample reached the laboratory only on 18.09.2001. An excise Crl.A.No.1258 of 2007 ..6.. guard by name Shri. Sadasivan Pillai delivered the sample in the laboratory. Shri. Sadasaivan Pillai has not been examined as a witness. The property clerk, the custodian of the sample has also not been examined as a witness. 12. 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. 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) Crl.A.No.1258 of 2007 ..7.. KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample 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. In the instant case 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. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband substance allegedly seized from the place of occurrence. 15. 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 Crl.A.No.1258 of 2007 ..8.. therefore be sustained. The appellant/saccused are therefore found not guilty of the offences punishable under Sections 8(2) and 55(g) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused are acquitted of the offences alleged; - (iv) They are set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K.BABU, JUDGE** kkj