Thankappan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **MONDAY, THE 20[TH] DAY OF MAY 2024 / 30TH VAISAKHA, 1946** **CRL.A NO. 277 OF 2008** **AGAINST THE JUDGMENT DATED 22.01.2008 IN SC NO.111 OF 2002 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA** **APPELLANT/ACCUSED:** **THANKAPPAN, S/O THEVAN, LALU VILASOM VEEDU, COLLEGE WARD, PUNALUR.** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2024,** **THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.277 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.277 of 2008 --------------------------------------Dated this the 20[th] day of May, 2024 ## JUDGMENT Aggrieved by the judgment dated 22.01.2008, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara in S.C.No.111/2002, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.06.1999 at 8.15 p.m, the accused was found in possession of 2.450 litres of 'CUMBA PREMIUM RUM' in four bottles at Punalur 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 55(a) and 55(i) 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.277 of 2008 3 the accused, charge were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P5 and MOs 1 and 2. Exhibits X1 to X3 were marked as Court Exhibits. 5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offences. 6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the Crl.A No.277 of 2008 4 judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized 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: - (i) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the contraband. - (ii) The act of the property clerk drawing the - sample from the contraband produced - before the Court has no sanction of law. 9. The alleged seizure was effected on 01.06.1999. The detecting officer had prepared Ext.P1 seizure mahazar. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the contraband. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the Crl.A No.277 of 2008 5 properties. 10. In Bhaskaran K. v. State of Kerala and another (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. 11. The detecting officer had not drawn the sample at the scene of occurrence. The property clerk of the Court had drawn the sample from the bulk quantity of the contraband produced before the Court. The legality of the act of drawing the sample by the property clerk was considered by this Court in Baburaj v. State of ## Kerala [2021 (6) KLT 416]. In Baburaj this Court held thus: “35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate, Crl.A No.277 of 2008 6 which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory. 36. The course adopted by the learned Magistrate undertaking the act of taking samples through the property clerk is not a procedure established by law. The necessary conclusion is that the Magistrate is not empowered to draw sample from the contraband produced before him by the detecting officer.” 12. In Baburaj (supra) this Court further held that as the procedure adopted in drawing sample from the contraband substance by the property clerk has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis prepared based on the sample so drawn. The resultant conclusion is that Ext.P2 Certificate of Chemical Analysis has no evidentiary value. 13. Since the prosecution failed to establish that the contraband substance allegedly seized from the place of 7 Crl.A No.277 of 2008 occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P2 Certificate of Chemical Analysis has no evidentiary value. ## 14. 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. 15. 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] }. 16. 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 Crl.A No.277 of 2008 8 evidence as discussed above. 17. 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, therefore, be sustained. In the result, the accused is acquitted of the offences alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS