Vijayakumar v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.A NO. 1099 OF 2009 ``` ``` AGAINST THE ORDER/JUDGMENT DATED 05.05.2009 IN SC NO.799 OF 2001 OF ADDITIONAL DISTRICT COURT (ADHOC), THIRUVANANTHAPURAM ``` ``` APPELLANT/S: ``` ``` VIJAYAKUMAR AGED 60, POTTAYIL VEEDU, PANKOTTUKONAM,, NADOORKOLLA DESOM, KOLLAYIL VILLAGE,, NEYYATTINKARA. ``` ``` BY ADVS. SRI.R.T.PRADEEP SRI.V.VIJULAL ``` ## **`RESPONDENT/S:`** ``` THE STATE OF KERALA THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ## **`G SUDHEER,PP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` Crl Appeal No.1099 of 2009 ..2.. ## **K. BABU, J** **------------------------------------------------Crl Appeal No.1099 of 2009 ------------------------------------------------Dated this the 18[th] day of March, 2024** ## **JUDGMENT** Aggrieved by the judgment dated 05.05.2009, passed by the Additional Sessions Court (Fast Track-II), Thiruvananthapuram, the appellant/accused has preferred this appeal. The appellant was convicted under Section 58 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 08.08.1997 at 2.00 p.m., the accused was found in possession of 5 litres of arrack at Udayankulangara 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 55(a) of the Abkari Act before the jurisdictional Magistrate. The case was committed to Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** 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 58 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 6 and proved Exts.P1 to P5 and MO1. Ext.X1 was marked as Court Exhibit. 5. After the closure of evidence on behalf of the prosecution, 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 punishable under Section 58 of the Abkari Act and convicted him Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** thereunder. 6. Heard Sri.R.T. Pradeep, the learned counsel appearing for the appellant/accused and Sri. G.Sudheer., the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions: (i)Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. (ii)The specimen of the seal was not produced before the Court to ensure the Crl Appeal No.1099 of 2009 ..5.. genuineness of the sample. (iii)The forwarding note was not produced and marked. (iv)The various officials who handled the sample during the course of its transit from the court to the laboratory were not examined. 9. The alleged seizure was effected on 08.08.1997. The detecting officer had prepared Ext.P1 seizure mahazar. Ext.P1 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory for comparison. The forwarding note was not produced and marked. 10. In _**Bhaskaran v. State of Kerala**_ (2020 KHC 5296), this Court held that the nature of the seal used by Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** 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. In _**Rajamma v. State of Kerala**_ [2014 (1) KLT 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. 12. In _**Ramachandran v. State of Kerala**_ [2021 (1) KLT 793] while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** sample drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 13. The sample was received in the Court by the Junior Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in the laboratory by an Excise Guard by name Sri. Retnakaran. The Junior Superintendent, the Property Clerk and Sri. Retnakaran, the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of various officials who handled the sample during its transit from the Court to the Laboratory is fatal to the prosecution. This view is fortified by the decision of the Apex Court in _**State of Rajasthan v. Daulat Ram**_ [AIR 1980 SC 1314). 14. In the present case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** the Chemical Examiner’s Laboratory. Therefore, Ext.P3 Certificate of Chemical Analysis has no evidentiary value. 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 corelated. 16. 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. The appellant/saccused is therefore found not guilty of the offence punishable under Section 58 of the Abkari Act. In the result, ## (i) The Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the offence alleged; Crl Appeal No.1099 of 2009 **==> picture [20 x 9] intentionally omitted <==** - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of the Court shall be disbursed to them as per law. Sd/- **K.BABU, JUDGE** kkj