Thilakarajan S/o Nanu 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. 2662 OF 2008 ``` ``` AGAINST THE JUDGMENT DATED07.10.2007 IN SC 746/2007 OF ``` ``` ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY ``` ## **`APPELLANT:`** ``` THILAKARAJAN S/O NANU, AGED 42 YEARS, PULLANIYODE, KATTUPARAMBIL HOUSE, NEERVELI, KUTHUPARAMBU, KANNUR DISTRICT. ``` ``` BY ADV C.K.SAJEEV ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 07.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2662 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2662 of 2008 --------------------------------------------- Dated this the 7[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 07.10.2008, passed by the Addl. Sessions Court, Adhoc-II, Thalassery in Sessions Case No.746/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules, and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 18.11.2006 at 6.30 p.m., the appellant/accused was found in possession of 20 bottles of Indian made foreign liquor near the cloak room in New Bus Stand, Thalassery, in violation of the provisions of the Abkari Act and Foreign Liquor Rules 3. After completing the investigation, final report was submitted against the accused for the offences punishable under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules before the jurisdictional Magistrate. The case was committed to the Sessions Court from where it was made over to the trial ``` Crl.A.No.2662 of 2008 ``` ``` 3 ``` Court. On the appearance of the accused, charges were framed against him for the offences punishable under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules. 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 4 and proved Exts. P1 to P9 and MOs 1 & 2. 5. After the closure of the 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 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 offences under Section 55(a) of the Abkari Act and Rule 9 of the Foreign Liquor Rules and was convicted thereunder. 6. Heard Sri.C.K.Sajeev, 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 ``` Crl.A.No.2662 of 2008 ``` ``` 4 ``` judgment of conviction and sentence on the following grounds:- (1) The delay in the production of the properties before the Court has not been explained by the prosecution. (2) The prosecution has not succeeded in proving that the liquor allegedly seized from the scene of occurrence reached the Chemical Examiner’s Laboratory. 8. The seizure and arrest were effected by the Additional Sub Inspector of Police, Thalaserry Police Station, (PW3) on 18.11.2006. The properties, including the bottle containing the sample, reached the Court only on 24.11.2006. The prosecution has not offered any satisfactory explanation for the delay in the production of the property. 9. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: - “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 ``` Crl.A.No.2662 of 2008 ``` ``` 5 ``` 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) In **Ravi's 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. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the samples could not be ruled out. 11. Ext.P1 is the mahazar evidencing arrest and seizure. The sample was drawn from the scene of occurrence. PW3 has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P1. He has not given evidence as to the nature of the seal used. The bottles containing the sample remained in the custody of the Property Clerk of the Court and the Police Constable No.4708 who delivered the sample in the laboratory. They were not examined by the prosecution to rule out the possibility of the sample being changed ``` Crl.A.No.2662 of 2008 ``` ``` 6 ``` or tampered with. 12. 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. 13. 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. 14. 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 ``` Crl.A.No.2662 of 2008 ``` ``` 7 ``` 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 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)** . 15. 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. 16. The strict compliance of the rigors of the statute and insistence on link evidence to ensure that the chain of allegations ``` Crl.A.No.2662 of 2008 ``` ``` 8 ``` against the accused is substantiated to the fullest is the requirement of law and mandatory to establish a charge alleging the offence punishable under the Abkari Act. 17. In the present case, the prosecution failed to establish that the liquor allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory in a tamper proof condition. 18. 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. 19. 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]}. 20. In the instant case, the prosecution was unable to establish ``` Crl.A.No.2662 of 2008 ``` ``` 9 ``` 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. 21. The conviction and sentence recorded by the trial court cannot be sustained. In the result, the accused is acquitted of the offences alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK