Unnikrishnan v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 8[TH] DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944 CRL.A NO. 1047 OF 2007** **AGAINST THE JUDGMENT DATED 11/6/2007 IN SC 459/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA CP 162/2002 OF JUDICIAL MAGISTRATE OF FIRST CLASS -I,** ## **MAVELIKKARA** ## **APPELLANT/ACCUSED:** **UNNIKRISHNAN AGED 48 YEARS,S/O.GOPALAN, 'KUTTIVILA THEKKETHIL', PALAMEL MURI, NOORANADU VILLAGE, MAVELIKARA.** **BY ADV SRI.S.SHANAVAS KHAN** ## **RESPONDENT/COMPLAINANT:** **THE STATE OF KERALA** **THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **SMT.REKHA S.-SENIOR PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1047 of 2007 2 ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 1047 of 2007 --------------------------------------------- Dated this the 8[th] day of December, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 11.06.2007, passed by the Additional District & Sessions Court Fast Track (Adhoc), Mavelikara, in Sessions Case No.459/2003, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 08.01.2002 at 01.00p.m., the accused was found transporting 750 ml.of illicit arrack in a plastic bottle at Palamel Muri, Mavelikara 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 8(2) 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 appearance of Crl.A No.1047 of 2007 3 the accused charges were framed against him for the offences punishable under Sections 8(2) and 55(a) 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 5 and proved Exts.P1 to P8 and MO1. 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 offences under Sections 8(2) and 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri.S.Shanavas Khan, 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/accused challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband seized Crl.A No.1047 of 2007 4 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. - a) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - b) No specimen seal was produced before the Court to ensure the genuineness of the sample produced. - c) No specimen seal was forwarded to the Chemical Examiner for the verification of the sample produced for analysis. - d) The custody of the sample during the period from 11.01.2002 to 17.01.2002 has not been explained by the prosecution. 9. The alleged seizure was effected on 08.01.2002. The Detecting Officer prepared Ext.P1 seizure mahazar at the scene of occurrence. He had drawn sample at the place of occurrence. The nature of the seal used at the time of sampling has not been described in Ext.P1 seizure mahazar. The specimen of the seal was not produced before the Court. The Detecting Officer and the other official witnesses have not given evidence as to the nature and description of the seal used. The specimen of the seal was not Crl.A No.1047 of 2007 5 produced before the Court to ensure the genuineness of the sample. 10. 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. 11. There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification to ensure that the specimen seal provided is tallying with the seal affixed on the sample. The forwarding note/requisition for sending sample to the laboratory was also not produced and marked. 12. 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. Crl.A No.1047 of 2007 6 13. 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. 14. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 11.01.2002 of the Judicial First Class Magistrate, Mavelikara. Ext.P8 would further show that the sample reached the laboratory only on 17.01.2002. The sample was delivered to the laboratory by an Excise guard by name Sri. Sadasivan. Neither the property clerk of the Court nor Sri. Sadasivan, who delivered the sample in the laboratory was examined by Crl.A No.1047 of 2007 7 the prosecution to rule out the possibility of the sample being changed or tampered with. 15. While dealing with a similar fact situation, this Court in _**Viswanadhan v. State of Kerala**_ [2016 (3) KHC 38] held thus: “ _Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”_ 16. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. Crl.A No.1047 of 2007 8 17. In the present case prosecution has failed to establish that the contraband seized at the place of occurrence was subjected to analysis in the Chemical Examination Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 18. In the instant case, the prosecution has failed to establish the link connecting the accused with the contraband seized. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 19. 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** AP