Thankappan Kunthalapparambil v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 11[TH] DAY OF JULY 2022 / 20TH ASHADHA, 1944 CRL.A NO. 1850 OF 2007** **AGAINST THE CONVICTION & SENCTENCE PASSED BY THE ADDITIONAL SESSIONS JUDGE (ADHOC)-II, THODUPUZHA IN SC.NO.370/2006 AS PER JUDGMENT DATED 13.09.2007** **APPELLANT/ACCUSED:** **THANKAPPAN KUNTHALAPARAMBIL HOUSE, MULLARINGADUKADA, VANNAPURAM VILLAGE, THODUPUZHA TALUK.** **BY ADV SRI.S.RAJEEV** ## **RESPONDENT/STATE:** **STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM (CRIME NO.24 OF, 2004 OF ERO THODUPUZHA).** **OTHER PRESENT:** **SMT. REKHA.S. (SR.P.P)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **11.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A NO. 1850 OF 2007** 2 ## **J U D G M E N T** Aggrieved by the judgment dated 13.09.2007, passed by the Additional Sessions Court, (Adhoc-II), Thodupuzha in Sessions Case No.370 of 2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) 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 19.12.2004 at 03.30 p.m., the accused was found in possession of 5 litres of arrack in a 10 litre can, 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 **CRL.A NO. 1850 OF 2007** 3 accused, charge was framed against him for the offence punishable under 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 to 3 and proved Exts.P1 to P6 and MO1. 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 8(2) of the Abkari Act and convicted him thereunder. 6. Heard Sri. S.Rajeev, the learned counsel **CRL.A NO. 1850 OF 2007** **==> picture [7 x 9] intentionally omitted <==** appearing for the appellant/accused and Smt. Rekha S. the learned Senior Public Prosecutor appearing for the respondent. 7. The judgment of conviction and sentence is challenged on the ground that the prosecution failed to show that the arrack allegedly recovered from the place of occurrence eventually reached 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 used in Ext.P1 seizure mahazar. - (b) The detecting officer has not given evidence as to the nature of the seal used. - (c) The property clerk of the Court and the Excise - Guard who delivered the sample in the laboratory were not examined by the **CRL.A NO. 1850 OF 2007** 5 prosecution. 9. The alleged seizure was on 19.12.2004. The detecting officer had drawn the sample at the place of occurrence. He had prepared Ext.P1 seizure mahazar to evidence the arrest and seizure. Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has also not given evidence as to the nature of the seal used. Ext.P5 forwarding note/the requisition for sending sample to the laboratory does not contain the name of the Excise Guard with whom the sample was forwarded to the laboratory. The space meant for entering the name of the official concerned is left vacant. The learned Magistrate who countersigned Ext.P5 has not put the date on which he made the initials. The property clerk of the Court and the Excise official concerned were not examined to rule out the possibility of the sample being changed or tampered with. **CRL.A NO. 1850 OF 2007** 6 10. While considering a similar fact situation, this Court in **Kumaran v. State of Kerala** [2016 (4) KLT ## 718], held thus: “7.There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laboratory through the Excise Guard Sri. Dinesan on 2-8-2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext.P9 as to when the learned magistrate put the initial in the forwarding note. The learned magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned magistrate when the initial was made, it is not clear from Ext P9 as to how many days before the despatch of the sample, the learned magistrate put the initial in Ext P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy **CRL.A NO. 1850 OF 2007** 7 of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise guard - concerned to prove the tamper proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained.” (Emphasis supplied) 11. In the instant case, due to the omission on the part of the prosecution to examine the officials who handled the sample during its transit to the laboratory from the Court, prosecution could not establish the tamper-proof despatch of the sample to the laboratory. 12. Ext.P6 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 10.01.2005 of the Judicial First Class **CRL.A NO. 1850 OF 2007** 8 Magistrate Court-I, Thodupuzha. The sample reached the laboratory on 11.01.2005. Ext.P6 shows that Shri.K.K.Majeed, an Excise Guard, delivered the sample to the laboratory. He was not examined as a witness. 13. 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. 14. 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 reaches the laboratory is required to be established by the prosecution. 15. In **Sasidharan v. State of Kerala (2007 (1) KLT** **CRL.A NO. 1850 OF 2007** **==> picture [7 x 9] intentionally omitted <==** **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 Rajasthan 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 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 **CRL.A NO. 1850 OF 2007** 10 specified that the presumption under S. 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)** . 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. In the instant case, the prosecution failed to show that the arrack recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 18. Yet another aspect to be considered is the **CRL.A NO. 1850 OF 2007** 11 delay in the analysis of the sample. Though the same reached the laboratory on 11.01.2005, it was subjected to analysis only on 25.01.2006. 19. While dealing with the question of delay in the analysis of the sample, this Court in **Krishnadas v. State of Kerala** (2019 KHC 191) held as follows: “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 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.” 20. In the instant case, the delay of more than one year in analyzing the sample has not been explained by the prosecution. **CRL.A NO. 1850 OF 2007** 12 21. The resultant conclusion is that the prosecution failed to establish the charge against the accused. 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. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. The Crl.Appeal is allowed as above. Sd/- **K. BABU, JUDGE** AS