Vinayan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 15[TH] DAY OF JUNE 2022 / 25TH JYAISHTA, ``` ## **`1944`** ``` CRL.A NO. 597 OF 2006 AGAINST THE ORDER/JUDGMENT IN SC 202/2001 OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA ``` ## **`APPELLANT/ACCUSED NO.1:`** ``` VINAYAN AGED 43 YEARS S/O.KARUVAN KUNHAN, ALAYANGAD DESOM, KALLOOR AMSOM, MUKUNDAPURAM TALUK,, THRISSUR DISTRICT. BY ADV SRI.P.M.ZIRAJ ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA REP. BY EXCISE INSPECTOR,, EXCISE RANGE OFFICE, SULTHAN BATHERY,, IN CRIME N0.25/99, OF EXCISE OFFICE, SULTHAN BATHERY, WAYANAD DISTRICT, THROUGH THE PUBLIC, PROSECUTOR, HIGH COURT OF KERALA, ERNAKUAM. BY SMT.REKHA.S- SR.PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 15.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 597 OF 2006 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 18.02.2006, passed by the Additional Sessions Court (Adhoc-II), Kalpetta in Sessions Case No.202/2001, accused No.1 has preferred this appeal. The appellant/ accused No.1 was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that the appellant/accused No.1 was found transporting 3720 litres of spirit in 124 plastic cans concealed among vegetables in the lorry bearing Regn. No.TN-45E/2635 on 06.06.1999 at 9.00 am at Muthanga Excise check post in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the appellant and the other ``` CRL.A NO. 597 OF 2006 ``` ..3.. accused for the offence punishable under Section 55(a) 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. The other accused (Accused No.2) remains absconding. On the appearance of the appellant/accused No.1 charge was framed against him for the offence punishable under Section 55(a) of the Abkari Act. The appellant/accused No.1 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 7 and proved Exts. P1 to P9 and MO 1. 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 to adduce evidence, if any, he may have in support thereof. The trial ``` CRL.A NO. 597 OF 2006 ``` ..4.. Court, after hearing the arguments addressed on both sides, found the accused No.1 guilty of the offence under Section 55(a) of the Abkari Act and convicted him thereunder. 6. Heard Sri. P.M.Ziraj, the learned counsel appearing for the appellant/accused No.1 and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the spirit allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- - (i) The delay in the production of the properties including the sample before the Court has not been satisfactorily explained by the prosecution. ## **`CRL.A NO. 597 OF 2006`** ..5.. - (ii) The seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. - (iii) The detecting officer has not given evidence as to the nature of the seal used. - (iv) The property clerk of the Court and the Excise official who delivered the sample in the laboratory were not examined by the prosecution. 9. The alleged seizure was on 06.06.1999 at the check post at Muthanga in Wayanad District. The appellant/accused No.1 was the driver of the vehicle involved in this case. At 09.00 a.m., the vehicle was subjected to search at the sales tax check post, Muthanga. PW1, the Excise Inspector, Excise check post, Muthanga searched the vehicle and found 3720 litres of spirit in 124 plastic cans kept among the other articles in the lorry and seized the spirit contained in the lorry. He ``` CRL.A NO. 597 OF 2006 ``` ..6.. had drawn 750 ml of spirit in one bottle and sealed the same. 10. The properties including the sample were produced before the Court only on 10.06.1999, which is evident from Ext.P6 list of properties. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties including the sample before the Court. 11. In **Ravi v. State of Kerala** [2011 (3) KHC 121], on the question of delay in the 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 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 production of the property.” [Emphasis supplied] In **Ravi's case** (supra) the Division Bench held that ``` CRL.A NO. 597 OF 2006 ``` ..7.. production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 12. 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. 13. The learned counsel for the appellant submitted that the detecting officer had not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample at the time of drawing the sample in Ext.P1 seizure mahazar. The detecting officer has also not given evidence as to the nature of the seal used. The learned counsel also contended that the absence of narration of nature and description of the seal in Ext.P1 seizure mahazar and lack of evidence on the nature of the seal used would affect the genuineness of ``` CRL.A NO. 597 OF 2006 ``` ..8.. the sample produced before the Court and forwarded to the laboratory for analysis. 14. The sample was received by the property clerk of the Court on 10.06.1999. The prosecution has not adduced evidence as to the date on which the sample was forwarded to the laboratory. Ext.P8 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 09.06.1999 of the Judicial First Class Magistrate, Sultan Bathery and the same reached the laboratory on 11.06.1999. It is pertinent to note that the properties including the sample were produced before the Court only on 10.06.1999. Therefore, the date of the letter, forwarding the sample to the laboratory from the Court, could not have been 09.06.1999. This points to the possibility of the sample being changed. This discrepancy in the prosecution evidence touching the genuineness of the sample should have been explained by the prosecution by examining the property clerk of the Court and the excise official who ``` CRL.A NO. 597 OF 2006 ``` ..9.. delivered the sample in the laboratory. The prosecution failed to examine those witnesses. The necessary conclusion is that the prosecution failed to rule out the possibility of the sample being changed or tampered with. 15. 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 establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory. 16. 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. 17. In **Sasidharan v. State of Kerala** [2007 (1) KLT ``` CRL.A NO. 597 OF 2006 ``` ..10.. 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 Rajasthan v. Daulat 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 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 ## **`CRL.A NO. 597 OF 2006`** ..11.. 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] **.** 18. 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. 19. In the present case, the prosecution has not succeeded in proving that the spirit allegedly recovered from the place of occurrence was forwarded to the laboratory for analysis. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 20. In **Vijay Pandey v. State of U.P** (AIR 2019 SC 3569), the Apex Court held that mere production of a ``` CRL.A NO. 597 OF 2006 ``` ..12.. laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 21. 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 bulk quantity of the alleged contraband substance said to have been seized from the possession of the accused. [vide: **State of Rajasthan v. Daulath Ram** [AIR 1980 SC 1314] and **Sasidharan v. State of Kerala** [2007(1) KHC 275]. 22. 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. 23. The upshot of the above discussion is that the ``` CRL.A NO. 597 OF 2006 ``` **==> picture [26 x 8] intentionally omitted <==** conviction entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused No.1 is therefore found not guilty of the offence punishable under Section 55(a) of the Abkari Act. In the result, - (i) the Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused No.1 is set aside ; - (iii) The accused No.1 is acquitted of the offence alleged ; - (iv) He is set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law. Sd/- ## **K. BABU, JUDGE** kkj