Vijayan and another v. State of Kerala

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` TUESDAY, THE 19[TH] DAY OF JULY 2022 / 28TH ASHADHA, 1944 ``` ``` CRL.A NO. 1662 OF 2007 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 2124/2002 OF III ADDITIONAL ``` ## **`DISTRICT COURT, KOLLAM`** ## **`APPELLANTS/ACCUSED NOS. 1 AND 2:`** ``` 1VIJAYAN & ANOTHER VINOD BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, PADAPPAKKARA NAGAR, KOLLAM. ``` - **`2 SUJATHA DO.OMANA AGED 41 YEARS`** ``` VINOD BHAVAN, PERAYAM CHERRY, MULAVANA VILLAGE, PADAPPAKKARA, KOLLAM. ``` ``` BY ADV SRI.DILEEP P.PILLAI ``` ## **`RESPONDENTS/COMPLAINANT:`** ``` STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S (SR.P.P) ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 19.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1662 OF 2007 ``` ``` 2 ``` ## **K.BABU, J.** =================== ## **Crl.A No. 1662 OF 2007** =================== Dated this the 19[th] day of July, 2022 ## **J U D G M E N T** Aggrieved by the judgment dated 22.08.2007, passed by the III[rd] Additional Sessions Judge, Kollam in S.C.No.2124/2002, the accused Nos. 1 and 2 have preferred this appeal. The appellants were convicted under Sections 55(a), and (g) 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 24.11.2000, the accused persons, who are wife and husband occupying PP.No. X/313 named Vinod Bhavanam at Padappakkara N.S. Nagar, in Mulavana Village possessed 4 litres of arrack and 80 litres of wash and other implements for preparation of arrack. 3. After completing the investigation, final report was submitted against the appellants for the offences punishable under Sections 55(a), 55(i) and 55(g) of the ``` CRL.A NO. 1662 OF 2007 ``` ``` 3 ``` 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 charges were framed against them for the offences punishable under Sections 55(a), 55(i) and 55(g) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the Trial Court for the aforesaid offences. 4. The prosecution examined PWs 1 to 6 and proved Exts.P1 to P6 and MO1, MO2 series, MO3, MO4 series and MO5. 5. After the closure of the prosecution evidence, the 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 offences. ``` CRL.A NO. 1662 OF 2007 ``` ``` 4 ``` 6. Heard Sri. Dileep P. Pillai, the learned counsel 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; a) The prosecution failed to establish the identity of the persons, who were found in possession of the contraband substance at the place of occurrence. b) The prosecution failed establish that the contraband substance recovered from the place of occurrence, eventually reached the Chemical Examiner’s Laboratory. 8. The seizure was effected by the Sub Inspector of Police, Kundara Police Station (PW1). According to PW1, on 24.11.2000, on getting reliable information that the accused were possessing wash, arrack and other implements for the preparation of arrack at their residence, the police team led by him proceeded to there. ``` CRL.A NO. 1662 OF 2007 ``` ``` 5 ``` On seeing the police party, according to PW1, both the accused escaped from the scene of occurrence. 9. The prosecution has no case that the Detecting Officer had any previous acquaintance with the accused. There is nothing to show that the Detecting Officer and the Official witnesses, who identified the accused had an opportunity to see the accused after the incident. They identified the accused in the Court in 2007 after a long lapse of 7 years. The independent witnesses did not support the prosecution case. Going by their evidence they had only a fleeting glimpse of the persons, who ran away from the scene of occurrence. 10. It is well settled that where a witness identifies an accused, who are not known to them in the Court for the first time their evidence is absolutely valueless, unless there has been a previous test identification parade to test their powers of observation. If the witness is not provided with an opportunity to test their power of observation it is wholly unsafe to rely on their bare testimony regarding the identification of an accused for the first time in Court ``` CRL.A NO. 1662 OF 2007 ``` ``` 6 ``` **[vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by Inspector of Police (AIR 2020 (SC) 254), State (Delhi Administration) v. V.C.Shukla and another (AIR 1980 (SC) 1382), Mohd. Abdul Hafeez v. State of AP (AIR 1983 (SC) 367)** . So on this ground alone the prosecution must fail. 11. The learned counsel for the appellants/accused relied on the following circumstances to substantiate his contention that the contraband substances allegedly recovered from the residence of the accused were eventually subjected to analysis in the Chemical Examiner’s Laboratory. a. The specimen of the seal stated to have been affixed on the bottles containing the sample was not produced before the Court. b. The Detecting Officer has not given evidence as to the nature of the seal used. c. No forwarding note/requisition for sending sample to the laboratory was produced and marked. ``` CRL.A NO. 1662 OF 2007 ``` ``` 7 ``` d. The various officials, who handled the sample during the course of its transit from the Court to the laboratory were not examined. e. The inordinate delay in the production of properties including the sample before the Court has not been explained by the prosecution. 12. The alleged seizure was on 24.11.2000. Ext.P4 the property list shows that the properties including the sample reached the Court only on 29.12.2000. The prosecution has not offered any satisfactory explanation for the delay in the production of properties before the Court. 13. In **Ravi v. State of Kerala & another** [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; It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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 production of the property. ” (Emphasis supplied) ``` CRL.A NO. 1662 OF 2007 ``` ``` 8 ``` 14. In **Ravi’s Case** (Supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. 15. 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. 16. Ext.P2 search list, the contemporaneous document prepared by the Detecting Officer at the time of seizure, does not contain the nature and description of the seal stated to have been affixed on the bottles containing the sample. The Detecting Officer has not given evidence as to the nature of the seal used. No specimen seal was produced before the Court to ensure the genuineness of the sample produced. Requisition for sending sample/forwarding note was not produced and marked. There is no evidence to show that the specimen of the seal ``` CRL.A NO. 1662 OF 2007 ``` ``` 9 ``` was forwarded to the Chemical Examiner’s Laboratory for facilitating them to verify the genuineness of the sample produced for analysis. 17. The bottles containing in the sample remained in the custody of the property clerk till 05.01.2001. Police Constable No. 3895 received the bottles containing the sample from the Court on 05.01.2001. He delivered the sample to the laboratory on 06.01.2001. Neither the Property Clerk nor the Police Officials, who delivered the sample to the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 18. 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 is established that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 19. A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly ``` CRL.A NO. 1662 OF 2007 ``` ``` 10 ``` 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. 20. 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 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 ``` CRL.A NO. 1662 OF 2007 ``` ``` 11 ``` 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]** . 21. 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. 22. In **Rajamma v. State of Kerala [2014 (1) KLT 506]** , this Court held that if the specimen of the seal ``` CRL.A NO. 1662 OF 2007 ``` ``` 12 ``` 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. 23. 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 sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory. 24. In the instant case the prosecution failed to show that the contraband substances allegedly recovered from the place of occurrence were subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P6 Certificate of Chemical Analysis has no evidentiary value ``` CRL.A NO. 1662 OF 2007 ``` ``` 13 ``` to connect the accused with the contraband. 25. 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. 26. 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]}. 27. The ownership and possession of the building from where the alleged seizure was effected are also in dispute. According to the prosecution, the search was effected at the house named Vinod Bhavanam at Padappakkara, N.S. Nagar, in Mulavana Village. The ``` CRL.A NO. 1662 OF 2007 ``` ``` 14 ``` ownership certificate issued by the local authority shows that the building owned by the accused Nos. 1 & 2 was Sudha Bhavanam at Padappakkara. The prosecution could not satisfactorily establish that the building from where the arrack, wash and implements were recovered belonged to the accused. 28. Therefore, the prosecution failed to establish that, a) The persons, who ran away from the place of occurrence were the accused. b). The contraband substance allegedly recovered from the building in question was subjected to analysis in the Chemical Examiner’s Laboratory. c) The accused were the owners in possession of the building in question. 29. 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 are entitled to the benefit of doubt arising from the absence of link evidence as ``` CRL.A NO. 1662 OF 2007 ``` ``` 15 ``` discussed above. 30. 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 appellants/accused are, therefore, not guilty of the offences alleged. They are acquitted of the offences alleged. They are set at liberty. Any amount deposited by the accused as per the directions of this Court shall be disbursed to them. The appeal is allowed as above. **Sd/K.BABU, JUDGE** LU