Unni @ Pramod v. The Excise Inspector, Kozhikode Excise Range & State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 2[ND] DAY OF JUNE 2022 / 12TH JYAISHTA, 1944** **CRL.A NO. 2017 OF 2008** **AGAINST THE JUDGMENT IN SC 505/2006 OF ADDITIONAL DISTRICT &** **SESSIONS COURT FAST TRACK (ADHOC-I), KOZHIKODE** ## **APPELLANT/ACCUSED:** UNNI @ PRAMOD, S/O RAGHAVAN, VALERI PARAMBIL HOUSE, CHEVAYUR VILLAGE, KOZHIKODE. BY ADV T.G.RAJENDRAN ## **RESPONDENTS/COMPLAINANT & STATE:** 1 THE EXCISE INSPECTOR, KOZHIODE EXCISE RANGE. 2 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 02.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.2017 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.2017 of 2008 --------------------------------------Dated this the 2[nd ] day of June, 2022 ## JUDGMENT Aggrieved by the judgment dated 12.08.2008, passed by the Additional District and Sessions Judge, Fast Track (Adhoc-I), Kozhikode in S.C.No.505/2006, the accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 08.04.2003 at 2.00 p.m, the appellant was found in possession of 5 litres of illicit arrack in a black plastic can, near the electric post bearing No.V/35 on the road leading to east Vellimadukunnu from Puliyamkodu junction in Chevayur amsom desom. 3. After completing the investigation, final report was submitted against the appellant for the offence punishable under Section 8(2) of the Abkari Act before the Judicial First Class Crl.A No.2017 of 2008 3 Magistrate Court-I, Kozhikode. The case was committed to the Sessions Court, Kozhikode 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 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 P7 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 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 for the aforesaid offence. 6. Heard Sri. T.G.Rajendran, the learned counsel appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Crl.A No.2017 of 2008 4 Public Prosecutor appearing for the respondents. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to rule out the possibility of the sample being changed or tampered with. The learned counsel relied on the following circumstances to substantiate his contentions: - (i) The prosecution has not given any convincing evidence as to the date on which the sample, produced before the Court on 08.04.2003, was forwarded to the laboratory. The sample reached the laboratory only on 15.05.2003. - (ii) The officer of the Court, who handled the sample and the Excise Guard who delivered the sample to the laboratory were not examined. 8. The alleged seizure was on 08.04.2003. PW1, the Excise Circle Inspector, Kozhikode detected the offence. The properties, including the sample, were received by the Junior Superintendent of the Jurisdictional Court on 08.04.2003. Exhibit P6 certificate of chemical analysis would show that the sample received in the Crl.A No.2017 of 2008 5 laboratory on 15.05.2003 as per letter dated 'Nil' of the Judicial First Class Magistrate-I, Kozhikode. 9. The sample, therefore, remained in the custody of the Junior Superintendent of the Court, the property clerk of the Court and Sri. Abdul Azeez, the Excise Guard who delivered the sample to the laboratory. These witnesses were not examined by the prosecution. The inevitable consequence is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 10. 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. 11. 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 Crl.A No.2017 of 2008 6 when it reaches the laboratory is required to be established by the prosecution. 12. 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 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 Crl.A No.2017 of 2008 7 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]. 13. In the instant case, the prosecution has not succeeded in establishing the link evidence to ensure that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. The necessary conclusion is that Ext.P6 certificate of chemical analysis has no evidentiary value. 14. Though the sample reached the laboratory on 15.05.2003, it was subjected to analysis on 11.03.2004. The prosecution has not offered any explanation as to the delay in the analysis of the sample. On the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] 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 Crl.A No.2017 of 2008 8 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.” 15. 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. 16. 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]}. 17. 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 evidence as discussed above. Crl.A No.2017 of 2008 9 18. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the charge. He is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS