Unnikrishnan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 20[TH] DAY OF JULY 2022 / 29TH ASHADHA, 1944 CRL.A NO. 875 OF 2008** **AGAINST THE ORDER/JUDGMENT IN SC 377/2006 OF ADDITIONAL SESSIONS** ## **COURT, FAST TRACK COURT-II, PALAKKAD** ## **APPELLANT/ACCUSED:** UNNIKRISHNAN, KOTHACHIRA DESOM, NAGALASSERY, OTTAPPALAM TALUK. BY ADVS. SRI.P.K.MOHANAN(PALAKKAD) SRI.VINOD RAVEENDRANATH ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY ADV. SMT.REKHA.S -SR.PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.875 of 2008 2 K.BABU, J. -------------------------------------- Criminal Appeal No.875 of 2008 --------------------------------------Dated this the 20[th] day of July, 2022 ## JUDGMENT Aggrieved by the judgment dated 26.04.2008, passed by the Additional Sessions Court, Fast Track Court No.II, Palakkad in S.C.No.377/2006, the appellant has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 03.09.2002 at about 6.00 p.m., the accused was found possessing about 4 litres of arrack in a 5 litre plastic can on the public road at Kothachira Desom in Nagalassery Village of Ottapalam Taluk, 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 55(a) and 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from Crl.A No.875 of 2008 3 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 5 and proved Exts.P1 to P9 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. P.K.Mohanan, 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 Crl.A No.875 of 2008 4 the judgment of conviction and sentence on the ground that the prosecution failed to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) Exhibit P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (ii) PW1, the detecting officer, has not given evidence as to the nature of the seal used. - (iii) There is no evidence that the Analyst, who received the sample verified the seal stated to have been affixed on the bottle containing the sample. - (iv) No specimen seal was produced before the Court to ensure the genuineness of the - sample. Crl.A No.875 of 2008 5 - (v) The officials, who handled the sample during its transit from the Court to the laboratory, were not examined. 8. The alleged seizure was effected on 03.09.2002 by the Excise Preventive Officer (PW1), Thrithala Excise Range. According to PW1, he had drawn sample from the contraband seized from the place of occurrence. He prepared Ext.P3 seizure mahazar to evidence seizure. Exhibit P3 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. At the time of examination, he failed to adduce evidence regarding the nature of the seal used at the time of sealing the same at the place of occurrence. The specimen of the seal was not produced before the Court to ascertain the genuineness of the sample. The bottle containing the sample was received at the Court by the Junior Superintendent on 04.09.2002. It remained in the custody of the property clerk till 23.09.2002. The Excise Guard, by name Shenny, received the sample on 23.09.2002 from the Court and delivered the same in the laboratory on 24.09.2002. Those officials who handled the sample during its Crl.A No.875 of 2008 6 transit from the Court to the laboratory were not examined by the prosecution. The omission on the part of the prosecution in not examining those officials is fatal as the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 9. Exhibit P9, the Certificate of Chemical Analysis, shows that the Chemical Examiner concerned had not verified the seal on the bottle containing the sample. Exhibit P9 only shows that the seal on the packet containing the sample alone was verified by the Chemical Examiner. 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 Crl.A No.875 of 2008 7 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. 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 Crl.A No.875 of 2008 8 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]. 13. 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. 14. In the instant case, the prosecution has not succeeded in establishing that the arrack allegedly recovered from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Exhibit P9 Certificate of Chemical Analysis has no evidentiary value. 15. Yet another aspect that requires consideration is the delay Crl.A No.875 of 2008 9 in the analysis of the sample. Though the sample reached the laboratory on 24.09.2002, it was analysed only on 16.06.2004. While dealing with the question of delay in the analysis of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows: “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 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.” 16. In the instant case, the delay in the analysis of the sample has not been explained by the prosecution. 17. 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. 18. 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 Crl.A No.875 of 2008 10 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]}. 19. In the instant case, 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. 20. 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 offence alleged. He is set at liberty. ## The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS