Thankarajan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 17[TH] DAY OF JUNE 2022 / 27TH JYAISHTA, 1944 CRL.A NO.1532 OF 2008** **AGAINST THE JUDGMENT IN SC 616/2004 OF ADDITIONAL SESSIONS COURT** **FAST TRACK-III, TRIVANDRUM** ## **APPELLANT/2ND ACCUSED:** THANKARAJAN, S/O KUTTAN, MALAVILA PUTHEN VEEDU, MALAYAM DESOM, MALAYINKEEZHU VILLAGE. BY ADVS. T.A.UNNIKRISHNAN K.SATHEESH KUMAR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 17.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1532 of 2008 2 ## K.BABU, J. -------------------------------------Criminal Appeal No.1532 of 2008 --------------------------------------Dated this the 17[th] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 28.06.2008, passed by the Additional Sessions Judge, Fast Track-III, Thiruvananthapuram in S.C.No.616/2004, accused No.2 has preferred this appeal. The appellant/accused No.2 was convicted under Section 55(a) of the Abkari Act. The accused was sentenced to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 21.01.2002 at about 11.15 p.m, the appellant/accused No.2 was found carrying a 10 litre can containing illicit arrack while riding pillion on the motor bike bearing registration No.KLV 7278 ridden by accused No.1. 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Sections 8(2), 58 and 55(a) 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 Crl.A No.1532 of 2008 3 appearance of accused No.2, charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. Accused No.2 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 5 and proved Exts.P1 to P6 and MO1. 5. After the closure of the prosecution evidence, 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 him 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 for the aforesaid offence. 6. Heard Sri. T.A.Unnikrishnan, the learned counsel appearing for the appellant/accused No.2 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 drawing of the sample by the property clerk of Crl.A No.1532 of 2008 4 the Court (PW5) is not a procedure established by law. - (ii) The prosecution failed to show the genuineness of the articles produced before the Court. - (iii) The prosecution also failed to prove the tamperproof despatch of the sample from the Court to the laboratory. 8. The alleged seizure was effected on 21.01.2002 by PW4, the S.I of Police, Malayinkeezhu Police station. A 10 litre can containing arrack was seized from the possession of the appellant/accused No.2. According to PW4, he sealed the contraband substance and produced the same before the Court. No sample was drawn at the place of occurrence by PW4. PW5, the property clerk of the Court, stated that he had received the can containing 10 litres of arrack on 24.01.2002 and drawn 100ml of arrack into a bottle to be used as sample. 9. The learned counsel for the appellant submitted that the act of drawing sample by the property clerk is not a procedure established by law and hence, the report of analysis prepared based on the sample so drawn has no evidentiary value. This Court Crl.A No.1532 of 2008 5 had occasion to consider this aspect in Baburaj v. State of Kerala [2021 (6) KLT 416]. The relevant portion of the judgment in Baburaj's case (supra) is extracted below: 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, 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.” ## 10. In Baburaj's case (supra) this Court further held that since Crl.A No.1532 of 2008 6 the procedure adopted in drawing sample from the contraband substance by the property clerk is not a procedure established by law, no evidentiary value can be given to the certificate of chemical analysis obtained based on the sample so drawn. On this ground alone the prosecution must fail. 11. The learned counsel further contended that the prosecution has not proved the genuineness of the contraband substance produced before the Court. Though the seizure was effected on 21.01.2002 the can containing the illicit arrack was produced before the Court only on 24.01.2002. The prosecution has not offered any satisfactory explanation for the delay in the production of the property before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “8. We, therefore, answer the reference as follows: 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. ” (Emphasis supplied) Crl.A No.1532 of 2008 7 In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 12. There is no satisfactory explanation for the delay in the production of property before the Court. The unexplained delay in the production of property would lead to the conclusion that tampering with sample could not be ruled out. 13. The detecting officer had not produced the specimen of the seal before the Court at the time of the production of the thondi articles. The production of the specimen seal affixed on the thondi articles is required to ensure the genuineness of the articles produced before the Court. Exhibit P2 certificate of chemical analysis shows that the sample was forwarded to the laboratory on 10.05.2002. Exhibit P2 further shows that the sample reached the laboratory only on 13.05.2002. The custody of the sample during the interregnum has not been explained by the prosecution. The Police official who delivered the sample in the laboratory has not been examined as a witness. 14. The crux of the offences under the Abkari Act, by its very Crl.A No.1532 of 2008 8 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. 15. 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 the contraband reaches the laboratory is required to be established by the prosecution. 16. 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's case (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 Crl.A No.1532 of 2008 9 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 reemphasized 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's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353]. 17. 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. 18. In the present case, the prosecution failed to establish Crl.A No.1532 of 2008 10 that the contraband allegedly seized was examined in the laboratory. Therefore, Exhibit P2 Certificate of Chemical Analysis has no evidentiary value. 19. The upshot of the above discussion is that the prosecution has failed to establish the link connecting the accused with the contraband substance seized. The conviction 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 charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS