Thomas, S/o Mathai v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` FRIDAY, THE 7[TH] DAY OF OCTOBER 2022 / 15TH ASWINA, 1944 CRL.A NO. 1505 OF 2007 ``` ``` AGAINST THE JUDGMENT DATED 06.08.2007 IN SC 1597/2002 OF THE ADDITIONAL SESSIONS COURT (ABKARI CASES), KOTTARAKKARA ``` ## **`APPELLANT/ACCUSED:`** ``` THOMAS, S/O MATHAI, VADAKKEYATTATHU VEEDU, CHEERANKAVU MURI, EZHUKONE VILLAGE, KOTTARAKKARA. ``` ``` BY ADV SRI.K.V.ANIL KUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV. SMT. REKHA.S. (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 07.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.1505 of 2007 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1505 of 2007 --------------------------------------------- Dated this the 7[th] day of October, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 06.08.2007, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara in Sessions Case No.1597 of 2002, 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 three years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 07.05.1999 at 8.00 p.m., the accused was found in possession of a 5 litre can full of arrack for sale and in transit on Kollam-Schenkottah road 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 accused charge was framed against him for the offence punishable under ``` Crl.A.No.1505 of 2007 ``` ``` 3 ``` 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 4 and proved Exts. P1 to P6, and MOs 1 and 2. 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. K.V.Anilkumar, 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 allegedly seized from the place of occurrence was subjected to ``` Crl.A.No.1505 of 2007 ``` ``` 4 ``` analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:- (i) The specimen of the seal was not produced before the Court along with the properties including the sample. (ii) Forwarding note/requisition for sending sample was also not produced and marked to establish the tamper proof despatch of the sample. (iii) The various officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 07.05.1999 by the Excise Preventive Officer attached to the Excise Range Office Kottarakkara (PW1). The properties, including the sample, were produced before the Court on 08.05.1999. The specimen of the seal was not produced along with the sample to ensure the genuineness of the contraband substance produced. 10. Ext.P1 seizure mahazar prepared by the detecting officer to evidence arrest and seizure, does not contain the nature of the seal stated to have been affixed on the sample containing ``` Crl.A.No.1505 of 2007 ``` ``` 5 ``` the bottle. 11. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison. The forwarding note/requisition for sending sample was not produced and marked. 12. The sample remained in the custody of the property clerk of the Court till 28.10.1999. Ext.P6, Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory through Sri.Benjamin, an Excise Guard. Sri.Benjamin delivered the sample to the Laboratory on 29.10.1999. Neither the property clerk nor the Excise Guard who delivered the sample in the laboratory was examined by the prosecution to establish the tamper-proof despatch of the sample from the Court to the laboratory. 13. Strict compliance of the rigors of the Statue and the insistence on link evidence to ensure that the chain of allegations 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. 14. In **Bhaskaran v. State of Kerala (2020 KHC 5296)** , this Court held that the nature of the seal used by the detecting ``` Crl.A.No.1505 of 2007 ``` ``` 6 ``` 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. 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. The non-examination of the property clerk of the Court and the Excise Guard who delivered the sample to the laboratory ``` Crl.A.No.1505 of 2007 ``` ``` 7 ``` is also fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. The necessary conclusion is that the prosecution failed to establish that the contraband allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. 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. Resultantly, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized and the ``` Crl.A.No.1505 of 2007 ``` ``` 8 ``` sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 21. The conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK