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High Court of KeralaSingle JudgeAcquitted; appeal allowed; conviction set aside...

Valiyath Melparambil Sreedharan v. State of Kerala

Case / Petition Number:CRL.A No. 1674 of 2007

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • K. Babu
Judgment Date
2022-05-27
Court Decision / Holding
The appeal is allowed; the conviction and sentence under Section 55(a) Abkari Act are set aside, and the accused is acquitted and to be released.
Final Disposition
Acquitted; appeal allowed; conviction set aside; accused to be released.

Parties to the Case

Appellants / Petitioners

  • Valiyath Melparambil Sreedharan

Respondents

  • State of Kerala

Legal Representation & Advocates

Counsels for Petitioners

  • • C. P. Peethambaran

Counsels for Respondents

  • • Public Prosecutor
  • • Smt. Rekha S. (SR.PP)

Case Synopsis & Summary

Valiyath Melparambil Sreedharan, the appellant, challenges a conviction under Section 55(a) of the Abkari Act for possession of 570 litres of spirit allegedly seized from a car at Iritty on 22.09.2000. The trial court convicted and sentenced him to two years’ rigorous imprisonment and a fine of Rs. 1 lakh after trial under Section 8(2) of the Abkari Act. The High Court scrutinizes critical aspects of the prosecution’s chain of custody and the evidentiary value of the seized sample. Notably, there was inordinate delay before the court received the property list (Ext. P4) and the sample; the prosecution failed to offer a satisfactory explanation for the delay, raising concerns about tampering. The court emphasizes requirements from several authorities that the specimen of a seal, the nature of the seal, and the seal’s description must be recorded, with a specimen produced, so as to establish authenticity. The witnesses who safeguarded the sample (property clerk and the police constable) were not examined to prove tamper-proof despatch or the linkage to the laboratory analysis (Ext. P9). Relying on Ravi v. State of Kerala and subsequent Kerala authorities, the High Court concludes that the prosecution did not satisfactorily prove that the sample analysed in the laboratory was the same sample seized. As a result, the conviction is unsustainable and the appellant is acquitted; the appeal is allowed. The appellant is to be set at liberty.

Provisions of Law Cited

Abkari Act, Section 8(2)Abkari Act, Section 55(a)Cr.P.C. Section 313Cr.P.C. Section 232Cr.P.C. Section 102(3)

Legal Doctrines & Maxims

  • Chain of custody / tamper-proof evidence principle
  • Production of seized property should be without unnecessary delay; explanation for delay required
  • Burden on prosecution to prove link between seized sample and laboratory analysis / expert testimony as to sample integrity

Submissions & Arguments

Contentions of Appellants / Petitioners

The defense contends that there was inordinate delay in producing the seized properties to the court (Ext. P4 property list and the sample). The delay was not adequately explained, raising a strong possibility of tampering with the sample. The seals’ nature and the seal specimen were not adequately described in the seizure mahazar, and the witnesses who safeguarded the sample were not examined to prove tamper-proof despatch to the laboratory. The lab report (Ext. P9) cannot be relied upon without establishing that the analysed sample was the same as that seized. Relying on Ravi v. State of Kerala and related authorities, the defense argues that the prosecution failed to establish the chain of custody and the non-examined witnesses create reasonable doubt about the link to the contraband. The combination of these deficiencies undermines the prosecution’s case beyond reasonable doubt, warranting acquittal.

Contentions of Respondents

The State, represented by the Public Prosecutor, would contend that the seizure and reporting to court complied with statutory requirements and that the laboratory analysis established the presence of contraband. While delay occurred, the State would argue that the overall evidence suffices to sustain the conviction, and the absence of certain witnesses does not necessarily break the chain of custody. It would be urged that the court should consider the evidence as a whole and apply the standard of proof beyond reasonable doubt. The State would rely on precedent recognizing the need for robust linking evidence and maintain that the material on record supported the trial court’s verdict, despite some procedural lapses.

Cited Precedents (8)

Case NameCitationTreatmentExplanation
Ravi v. State of Kerala2011 (3) KHC 121PositiveUsed to emphasize that seizure property must be produced before the court without unnecessary delay and that delay requires explanation; forms the core reason for questioning the chain of custody.
Bhaskaran K. v. State of Kerala2020 KHC 5296PositiveCited for requirements on seal description and genuineness of the sample; supports chain-of-custody concerns.
Achuthan v. State of Kerala2016(1) KLD 391PositiveUsed in relation to seal evidence and lab-chain considerations.
Krishnadas v. State of Kerala2019 KHC 191PositiveCited for related chain-of-custody and laboratory-link principles.
Rajasthan v. Daulat RamAIR 1980 SC 1314PositiveSupports that a mere laboratory certificate requires corroboration where chain of custody is in doubt.
Vijay Pandey v. State of U.PAIR 2019 SC 3569PositiveStates that laboratory results alone are not definitive proof; must be correlated with the seized sample.
Sathi v. State of Kerala2007 (1) KHC 778PositiveCited within the context of evidentiary link between seizure and analysis.
Valsala v. State of Kerala1993 KHC 798PositiveUsed to reinforce chain-of-custody concerns and the necessity of reliable sample handling.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 27[TH] DAY OF MAY 2022 / 6TH JYAISHTA, 1944** ## **CRL.A NO. 1674 OF 2007** **AGAINST THE JUDGMENT DATED 13/8/2007 IN S.C.NO.270/2003 ON THE FILE OF THE** **ADDITIONAL SESSIONS COURT, (ADHOC)-III, THALASSERY** **APPELLANT/ACCUSED:** **VALIYATH MELPARAMBIL SREEDHARAN, S/O.CHATHUNNI, KUTTIPPURAM AMSOM, DESOM,, MALAPPURAM DISTRICT.** **BY ADV SRI.C.P.PEETHAMBARAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, REPRESENTED BY THE S.H.O.,, IRITTY POLICE STATION,, THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV PUBLIC PROSECUTOR** ## **OTHER PRESENT:** **SMT. REKHA.S -(SR.PP)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 27.05.2022, THE COURT** **ON THE SAME DAY DELIVERED THE FOLLOWING:** **CRL.A.No.1674 of 2007** **2** ## **JUDGMENT** ## **Dated this the 27[th] day of May, 2022** Aggrieved by the judgment dated 13.08.2007, passed by the Additional Sessions Court, Adhoc-III, Thalassery in Sessions Case No.270/2003, the accused has preferred this appeal. The appellant was convicted under Section 55(a) 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 22.09.2000 at 9.30 p.m., the Sub Inspector of Police, Iritty Police Station, seized 570 litres of spirit kept in a car bearing Reg. No.KRQ/2659 from the possession of the accused. 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 **CRL.A.No.1674 of 2007** **3** 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 series. 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 55(a) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 Lakh. 6. Heard Sri.C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the **CRL.A.No.1674 of 2007** **4** learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant contended that there was inordinate delay in sending the properties, including the sample, to the Court. The alleged incident took place on 22.09.2000. Ext.P4 property list shows that the bottles containing the sample were produced before the Court only on 29.09.2000. The prosecution has not offered any satisfactory explanation for the delay in producing the properties before the Court. 8. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: > 1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed Crl.Appeal No.1196 of 2006 7 production of the property.” (Emphasis supplied).” 9. In _**Ravi's case**_ (supra) the Division Bench held that production of the property before the Court should **CRL.A.No.1674 of 2007** **5** take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 11. It is further contended that the prosecution failed to rule out the possibility of the sample being changed or tampered with during the period in which it was handled by the officials concerned. 12. The detecting officer who has drawn the sample has not narrated the nature of the seal, stated to have been affixed on the sample, in the mahazar. 13. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the Court. The **CRL.A.No.1674 of 2007** **6** specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court {Vide: _**Bhaskaran K. v. State of Kerala and another**_ (2020 KHC 5296), _**Achuthan v. State of Kerala**_ [2016(1) KLD 391], _**Krishnadas v. State of Kerala**_ (2019 KHC 191)}. 14. The bottles containing the sample remained in the custody of the property clerk of the Court and the Police Constable (3951), who delivered the sample in the laboratory. These witnesses were not examined by the prosecution to prove the tamper-proof despatch of the sample to the laboratory. The inevitable consequence is that 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)].**_ 15. As the prosecution has not succeeded in establishing that the contraband seized from the place of occurrence was eventually subjected to analysis in the **CRL.A.No.1674 of 2007** **7** Chemical Examiner's laboratory, Ext.P9 Certificate of Chemical Analysis has no evidentiary value. 16. 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 corelated. 17. It is well 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 bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so, when the sample might have changed several hands before reaching the hands of the Chemical Examiner. {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Valsala v. State of Kerala**_ (1993 KHC 798), _**Sathi v. State of Kerala**_ [2007 (1) KHC 778]}. **CRL.A.No.1674 of 2007** **8** 18. 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. 19. The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the charge under 55(a) of the Abkari Act. He is set at liberty. The appeal is allowed as above. **Sd/K.BABU Judge** NR/27/05/2022 **CRL.A.No.1674 of 2007** **9** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **ANNEXURE A1** **CERTIFIED COPY OF THE JUDGMENT DATED 13/8/2007 IN S.C.NO.270/2003 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE (ADHOC-III), THALASSERY**