Thankappan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 7[TH] DAY OF JUNE 2022 / 17TH JYAISHTA, 1944 CRL.A NO. 2977 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED 24.11.2008 IN SC 1724/2004 OF ADDITIONAL DISTRICT COURT (ADHOC)-i, KOLLAM ``` ## **`APPELLANT/ACCUSED:`** ``` THANKAPPAN,S/O AYYAPPAN, KULATHOOR KIZHAKKATHIL, MANAPPALLY THEKKU MURI,, KARUNAGAPPALLY TALUK, KOLLAM DISTRICT. ``` ``` BY ADVS. B.MOHANLAL SAIJU S. ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY EXCISE RANGE INSPECTOR, KARUNAGAPPALLY EXCISE RANGE, KOLLAM DISTRICT THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2977 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2977 of 2008 --------------------------------------------- Dated this the 7[th] day of June, 2022 **JUDGMENT** Aggrieved by the judgment dated 24.11.2008, passed by the Additional District and Sessions Court (Adhoc)-I , Kollam, in Sessions Case No.1724 of 2004, 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 29.01.2003 at 5.30 p.m., the appellant/accused was found carrying 30 litres of wash in a cannas at the road on the northern side of Thenganathu veedu, Manapally Kannitta Mukku, Manappally Thekkum Muri, Pavumpa Village, Karunangappally Taluk, 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 (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 trial Court. On the appearance of ``` Crl.A.No.2977 of 2008 ``` ``` 3 ``` 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 PWs1 to 6 and proved Exts. P1 to P7 and MOs I and II. 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. On the side of the defence, DW1 was examined. 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. B.Mohan Lal, 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 ground that the prosecution failed to establish that the contraband substance ``` Crl.A.No.2977 of 2008 ``` ``` 4 ``` allegedly seized from the possession of the accused reached the Court in a tamper-proof condition and the same was subjected to chemical analysis in the laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: - (1) Ext.P3, seizure mahazar does not contain the nature of the seal stated to have been affixed on the bottle containing the sample. - (2) PW1, the detecting officer, has not given evidence as to the nature of the seal used. - (3) The specimen seal was not produced before the Court and forwarded to the laboratory to ensure the genuineness of the sample. - (4) The officials who handled the sample during the course of its transit from the place of occurrence to the Chemical Examiner’s laboratory were not examined by the prosecution to establish the tamper-proof despatch of the sample to the laboratory. 9. The alleged seizure and arrest were effected on 29.01.2003 by the Preventive Officer (PW1) attached to the Excise ``` Crl.A.No.2977 of 2008 ``` ``` 5 ``` Range Office, Karunagapally. Ext.P3, the seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. PW1 has not given evidence as to the nature and description of the seal used at the time of drawing the sample. The specimen seal was not produced before the Court to ensure the genuineness of the sample produced. Forwarding note/requisition for sending the sample was not produced and marked to ascertain whether the specimen of the seal was forwarded to the Chemical Examiner's Laboratory. 10. The sample was produced before the Court on 30.1.2003 and remained in the custody of the Property Clerk of the Court. Ext.P7, Certificate of Chemical Analysis shows that on 31.01.2003, the sample was forwarded to the laboratory. Ext.P7 further shows that Sri.B.Unnikrisha Pillai, Excise Guard delivered the sample in the laboratory on 01.02.2003. Property Clerk of the Court and Sri.B.Unnikrishanan were not examined by the prosecution. Non-examination of these two officials is fatal to the prosecution. Hence, the prosecution has not succeeded in proving the tamper-proof despatch of the sample. 11. 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 ``` Crl.A.No.2977 of 2008 ``` ``` 6 ``` sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 12. 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. 13. 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 re-emphasized on the requirement of strict compliance with the statutory formalities in the matter of ``` Crl.A.No.2977 of 2008 ``` ``` 7 ``` 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 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)** . 14. 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. 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 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. ``` Crl.A.No.2977 of 2008 ``` ``` 8 ``` ## 16. In **Ramachandran v. State of Kerala (2021 (1) 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. 17. Though the sample was received in the laboratory on 01.02.2003, it was subjected to analysis only on 14.11.2003. The delay in the analysis of the sample has not been explained by the prosecution. 18. 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 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.” ``` Crl.A.No.2977 of 2008 ``` ``` 9 ``` 19. In the instant case, the delay of more than eight months in analysing the sample has not been explained by the prosecution. 20. The prosecution failed to establish the genuineness of the sample examined in the laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. 21. 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. 22. 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]}. 23. In the instant case, the prosecution was unable to ``` Crl.A.No.2977 of 2008 ``` ``` 10 ``` 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. 24. The conviction and sentence recorded by the trial Court, therefore, 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