Unnikrishnan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 13[TH] DAY OF JUNE 2022 / 23RD JYAISHTA, 1944 CRL.A NO. 2938 OF 2008 ``` ``` AGAINST THE JUDGMENT dated 26.11.2008 IN SC 461/2006 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED:`** ``` UNNIKRISHNAN, S/O APPUCHETTY, VADUVANCHAL, VYTHIRI TALUK, WAYANAD DISTRICT. ``` ``` BY ADV. SMT. CELINE JOSEPH ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE - EXCISE INSPECTOR OF KALPETTA, EXCISE RANGE, REPRESENTED BY THE, PUBLIC PROSECUTOR,HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR SMT. REKHA..S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING BEEN HEARD ON 13.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.A.No.2938 of 2008 ``` ``` 2 ``` ## **K.BABU, J.** ------------------------------------------- ## Crl.A No. 2938 of 2008 --------------------------------------------- Dated this the 13[th] day of June, 2022 ## **JUDGMENT** Aggrieved by the judgment dated 26.11.2008, passed by the Additional Sessions Court (Adhoc)-II, Kalpetta in Sessions Case No.461/2006, 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 one year and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 01.02.2006, the accused was found in possession of 2½ litres of arrack at Cheruppatta 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 Section 8(2) of the Abkari Act. The accused pleaded not guilty to ``` Crl.A.No.2938 of 2008 ``` ``` 3 ``` 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 P7 and MO 1. 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 Smt.Celine Joseph, 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 substance allegedly seized from the place of occurrence was eventually subjected to analysis in the Chemical Examiner’s Laboratory. ``` Crl.A.No.2938 of 2008 ``` ``` 4 ``` 8. The learned counsel for the appellant relied on the following circumstances to substantiate her contentions:- (1) Ext. P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (2) The detecting officer has not given evidence as to the nature of the seal used. (3) The various officials who handled the sample during its transit from the place of occurrence to the Chemical Examiner's Laboratory have not been examined. 9. The alleged seizure and arrest were effected on 01.02.2006 by the Excise Inspector, Kalpetta (PW1). He had drawn the sample at the time of occurrence and prepared Ext.P2 seizure mahazar evidencing arrest and seizure. Ext.P2 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the specific nature of the seal used at the time of drawing the sample. 10. There is nothing to show that specimen of the seal was produced before the Court at the time of production of the property ``` Crl.A.No.2938 of 2008 ``` ``` 5 ``` on 02.02.2006 to ensure the genuineness of the sample. PW1, the detecting officer deposed that on the date of seizure itself the properties, including the sample, were produced before the learned Magistrate along with the accused. PW1 stated that he forwarded the articles, including the sample through an Excise Guard the identity of whom is not evident. According to him, as the properties were produced before the learned Magistrate at his residence, they were returned to the Excise Guard who produced them. No contemporaneous records were produced to show that the sample was brought back to the safe custody of PW1. The Excise Guard concerned was not cited as a witness and examined by the prosecution. The properties also remained in the custody of the Property Clerk of the Court. The sample reached the laboratory on 10.02.2006. An Excise Guard by name Sri.M.Rajesh delivered the bottle containing the sample to the laboratory. 11. Therefore, the sample remained in the custody of the Excise Guard who produced it before the learned Magistrate and thereafter brought back to the Excise office, the Property Clerk of the Court, Sri.M.Rajesh, the Excise Guard who produced the sample in the laboratory. Those witnesses were not examined by the prosecution. The consequence of this omission on the part of the ``` Crl.A.No.2938 of 2008 ``` ``` 6 ``` prosecution is that the prosecution failed to rule out the possibility of the sample being changed 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 ``` Crl.A.No.2938 of 2008 ``` ``` 7 ``` 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 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. ``` Crl.A.No.2938 of 2008 ``` ``` 8 ``` 16. In the present case, the prosecution therefore failed to establish that the contraband allegedly seized from the possession of the accused was subjected to the analysis in Chemical Examiner’s Laboratory. Hence Ext.P7, Certificate of Chemical Analysis has no evidentiary value. 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. It is the duty of the prosecution to establish that the sample seized and that tested are the same. 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 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 ``` Crl.A.No.2938 of 2008 ``` ``` 9 ``` entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 20. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. ``` Sd/- K.BABU JUDGE ``` VPK