VIJAYA v. STATE OF KERALA

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 23[RD] DAY OF DECEMBER 2022 / 2ND POUSHA, 1944** **CRL.A NO. 233 OF 2008** **AGAINST THE JUDGMENT IN SC 751/2006 OF ADDITIONAL DISTRICT AND** **SESSIONS COURT, FAST TRACK (ADHOC-II), KOZHIKODE** ## **APPELLANT/ACCUSED:** VIJAYA, W/O VISWAN, AGED 38 YEARS, NEDIYALIL HOUSE, THALAKULATHUR, KOZHIKODE. BY ADVS. SRI.JESWIN P.VARGHESE SRI.K.RADHAKRISHNAN NAIR ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.REKHA.S,PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 23.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.233 of 2008 2 ## K.BABU, J. -------------------------------------- Criminal Appeal No.233 of 2008 --------------------------------------Dated this the 23[rd] day of December, 2022 ## JUDGMENT Aggrieved by the judgment dated 05.12.2007, passed by the Additional District and Sessions Court, Fast Track (Adhoc-II), Kozhikode in S.C.No.751/2006, the appellant/accused has preferred this appeal. The appellant 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 30.10.2003 at 11.00 a.m, the the appellant/accused was found in possession of one litre of arrack at Thalakkulathur, 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 Crl.A No.233 of 2008 3 made over to the Trial Court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P5 and MO1 series. 5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard Sri.Jeswin.P.Varghese, 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.233 of 2008 4 the judgment of conviction and sentence on the ground that the prosecution has not succeeded in establishing the tamper-proof despatch of the sample from the Court to the laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) No specimen seal was produced before the - Court at the time of production of the properties. - (ii) The date on which the properties, including the - sample, were produced before the Court is not - evident from any contemporaneous records. - (iii) There is no evidence to show that the specimen - of the seal was produced before the Court at - the time of production of the sample. - (iv) The custody of the sample during the period from 31.10.2003 to 03.11.2003 has not been - explained by the prosecution. 9. The alleged seizure was effected on 30.10.2003. The detecting officer had drawn sample at the scene of occurrence. The Crl.A No.233 of 2008 5 nature and description of the seal stated to have been affixed on the bottle containing the sample are not evident from Ext.P1 seizure mahazar. The impression of the seal found in Ext.P1 is not legible. The detecting officer has not given evidence as to the nature of the seal used. 10. 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. 11. The prosecution has not established the date and time on which the properties, including the sample, were produced before the Court. The property list was not produced and marked. Exhibit P4 Certificate of Chemical Analysis would show that the sample was forwarded to the laboratory as per letter dated 31.10.2003 of the Judicial Magistrate of First Class, Koyilandy. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. In the absence of any contra evidence, Crl.A No.233 of 2008 6 the necessary inference is that on 31.10.2003 the sample was handed over to the official concerned from the Court. Exhibit P4 would show that on 03.11.2003 the Excise guard by name Rafeek K.K delivered the sample to the laboratory. Sri.Rafeek K.K was not examined as a witness. There is no explanation for the custody of the sample during the interregnum from 31.10.2003 and 03.11.2023. 12. 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.” 13. In the present case, non-examination of the property clerk of the Court, who is the custodian of the sample in the Court and the Excise official who delivered the sample to the laboratory is fatal to the prosecution, as the prosecution could not rule out the possibility of the sample being changed or tampered with. Since Crl.A No.233 of 2008 7 the prosecution has not succeeded in establishing the tamperproof despatch of the sample from the Court to the laboratory, Ext.P4 Certificate of Chemical Analysis has no evidentiary value. 14. Therefore, the prosecution has failed to establish the link connecting the accused with the contraband seized. 15. 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. 16. 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]}. 17. In the instant case, the prosecution has miserably failed to establish the link connecting the accused with the contraband Crl.A No.233 of 2008 8 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. 18. The upshot of the above discussion is that the conviction and sentence 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. She is set at liberty. The appeal is allowed as above. Sd/K.BABU, JUDGE KAS