VELAYUDHAN, S/O BAPPU & SANTHA D/O CHEKKINI v. STATE OF KERALA

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` THURSDAY, THE 23[RD] DAY OF JUNE 2022 / 2ND ASHADHA, 1944 ``` ## **`CRL.A NO. 2019 OF 2008`** ## **`AGAINST THE ORDER/JUDGMENT IN SC 835/2006 OF ADDITIONAL SESSIONS`** ## **`COURT (ADHOC)-II, KOZHIKODE`** ## **`APPELLANTS/ACCUSED:`** - **`1 VELAYUDHAN, S/O BAPPU,`** ``` MAYANGICHALIL, MEETHAL, KOTHANGAL DESOM, ATHOLI VILLAGE, KOYILANDY TALUK. ``` - **`2 SANTHA D/O. CHEKKINI`** ``` MAYANGICHALI, MEETHAL, KOTHANGAL DESOM,, ATHOLI VILLAGE, KOYILANDY TALUK. ``` ## **`BY ADV SANTHARAM.P`** ## **`RESPONDENT/COMPLAINANT:`** ## **`STATE OF KERALA`** ``` REP.BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`BY ADV PUBLIC PROSECUTOR`** ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 2019 OF 2008 ``` ``` 2 ``` ## **K.BABU, J.** =========================== **Criminal Appeal No.2019 of 2008** =========================== Dated this the 23[rd ] day of June, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 05.08.2008, passed by the Additional District and Sessions Judge (Fast Track) (Adhoc-II), Kozhikode in S.C.No.835/2006, the accused have preferred this appeal. The appellants were convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.1 Lakh each. 2. The prosecution case is that, on 03.07.2004 at 8.15 am, the accused was found manufacturing arrack in a firewood shed situated on the eastern side of the house No.III/421 at Atholi in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellants for the offence punishable under Section 8(2) of the Abkari Act before the ``` CRL.A NO. 2019 OF 2008 ``` ``` 3 ``` Judicial First Class Magistrate Court, Koyilandy. 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 them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, they 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 series. 5. After the closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellants for the aforesaid offence. 6. Heard Sri. Santharam. P, the learned counsel ``` CRL.A NO. 2019 OF 2008 ``` ``` 4 ``` appearing for the appellants/accused and Smt. Rekha.S, the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenged the judgment of conviction and sentence on the following grounds: - (i) The Detecting Officer, who allegedly recovered the contraband substance from a shed attached to the building in question has not prepared a search memorandum as required by Section 31 of the Abkari Act. - (ii) The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory. 8. The alleged seizure and arrest were effected on 03.07.2004. The Detecting Officer is the Excise Inspector attached to Excise Circle Office, Perambra (PW1). ``` CRL.A NO. 2019 OF 2008 ``` ``` 5 ``` According to PW1, on 03.07.2004 at about 8.00 a.m., while he was on patrol duty he got reliable information that arrack was being distilled in the residence of the accused. 9. The learned counsel for the accused challenged the very genesis of the prosecution case on the ground that, no memorandum of search was prepared by PW1 before conducting search. No search memo was produced and marked before the Court. There is nothing to show that a search memo was prepared by PW1 before conducting search. The learned counsel submitted that, violation of mandatory provisions as contained in Section 31 of the Abkari Act vitiates the search. 10. The learned counsel relied on **Ramankutty @ Raveendran v. Excise Inspector, Kunnamangalam Excise (2021 (2) KHC 542)** to substantiate his contention. In **Ramankutty’s Case** (Supra) this court held thus; “ 26. The normal procedure before searching a place is, as provided under S.30 of the Abkari Act. Before Searching a place on the basis of information received, a warrant must be obtained from a Magistrate, who must ``` CRL.A NO. 2019 OF 2008 ``` ``` 6 ``` examine the informant and the statement must be reduced into writing. In circumstances where the search warrant cannot be obtained, the officer can take the benefit of S.31 of the Abkari Act under which, an Abkari officer must, before proceeding to search a place, make a record of the ground based on which he believes an offence under the Act has been committed. These are valuable safeguards for protecting the liberty of an individual. Compliance with such requirements forms the components of a just, fair, and reasonable procedure, as enshrined under Art.21 of the Constitution of India. Violation of S.31 will therefore vitiate the search. A conviction based on an invalid search cannot stand the test of law. In K. L. Subhayya v. State of Karnataka (1979 KHC 754 : (1979) 2 SCC 115 : AIR 1979 SC 711 : 1979 SCC (Cri) 367 : 1979 CriLJ 651 : 1979 MLJ (Cri) 484 : 1979 (16) ACC 150), the Supreme Court while considering similar provisions under the Mysore Excise Act held that "it is admitted that the inspector who searched the car of the appellant had not made any record of any ground on the basis of which he had a reasonable belief that an offence under the Act, was being committed before proceeding to search the car and thus the provisions of S.54 were not at all complied with. This, therefore, renders the entire search without jurisdiction and as a logical corollary vitiates the conviction. We feel that both S.53 and S.54 contain valuable safeguards for the liberty of the citizen in order to protect them from ill founded or frivolous prosecution or harassment. The situation in the instant case is almost similar and the conviction of the appellant is ``` CRL.A NO. 2019 OF 2008 ``` ``` 7 ``` therefore liable to be set aside.” 11. In the present case, the prosecution failed to show that the search memorandum was prepared. 12. The prosecution has not given evidence as to the official who received the properties including the sample in the Court. Ext.P2, Search List does not contain an endorsement in this regard. The sample and other articles were produced before Court only on 03.07.2004. It is to be inferred that the sample remained in the custody of property clerk of the Court, till the same was forwarded to the laboratory. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. The sample reached the laboratory on 05.07.2004. An Excise Guard by name Sri. A.P. Sreedharan Nair delivered the sample in the laboratory. The sample remained in the custody of the property clerk of the Court and the Excise Guard. Those officials were not examined as witnesses by the prosecution to rule out the possibility of the sample being changed or tampered with. 13. The crux of the offences under the Abkari Act, by ``` CRL.A NO. 2019 OF 2008 ``` ``` 8 ``` 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. 14. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by the prosecution. 15. 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 tamperproof condition. Relying on **State of Rajastan v. Daulath Ram [AIR 1980 SC 1314]** in Sasidharan (supra) this ``` CRL.A NO. 2019 OF 2008 ``` ``` 9 ``` 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 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 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 (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in **Ravi v. State of Kerala [2011 (3) KLT 353]** . ## 16. In **Rajamma v. State of Kerala [2014 (1) KLT** ``` CRL.A NO. 2019 OF 2008 ``` ``` 10 ``` **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. 17. In the absence of any evidence to show that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. 18. Yet another aspect to be considered is the delay in the analysis of sample. Though the sample reached the laboratory on 05.07.2004, it was subjected to analysis only on 05.10.2005. On the question of delay in the analysis of the sample, in **Krishnadas v. State of Kerala (2019 KHC 191)** this Court 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 ``` CRL.A NO. 2019 OF 2008 ``` ``` 11 ``` 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.” 19. In the instant case, the delay of more than one year in analysing the sample has not been explained by the prosecution. 20. In the instant case, prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused are entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 21. The upshot of the above discussion is that the conviction and sentence entered by the Court below ``` CRL.A NO. 2019 OF 2008 ``` ``` 12 ``` overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellants/accused are, therefore, found not guilty of the offence alleged. They are acquitted of the offence alleged. They are set at liberty. The appeal is allowed as above. **Sd/K.BABU, JUDGE** LU