Vinod, S/o Pushparajan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` MONDAY, THE 4[TH] DAY OF JULY 2022 / 13TH ASHADHA, 1944 CRL.A NO. 1900 OF 2008 ``` ``` AGAINST THE ORDER/JUDGMENT IN SC 801/2005 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM CP 214/2003 OF JUDICIAL MAGISTRATE OF FIRST CLASS - I, ``` ## **`KARUNAGAPPALLY`** ## **`APPELLANT/S:`** ``` VINOD, S/O PUSHPARAJAN, MUNDAPPALLI, KIZHAKKATHIL, MANAPPALLI THEKKU MURI,, PAVUMBA VILLAGE, KARUNAGAPPALLY. BY ADVS. K.SIJU A.MUHAMMED RAFFI PRATHEESH.P ``` ## **`RESPONDENT/S:`** ``` STATE OFKERALA, REPRESENTED BY EXCISE INSPECTOR, EXCISE RANGE,, KARUNAGAPPALLY, THROUGH PUBLIC PROSECUTOR,, HIGH COURT OF KERALA, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`OTHER PRESENT:`** ``` SR PP SRI.RAJESH A ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 04.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 1900 OF 2008 ``` ..2.. ## **JUDGMENT** Aggrieved by the judgment dated 22.08.2008, passed by the Additional District and Sessions Court (Adhoc – II), Kollam, in Sessions Case No.801/2005, accused No.1 has preferred this appeal. The appellant/accused No.1 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. One Lakh. 2. The prosecution case is that on 25.06.2002 at 6 p.m., the accused was found in possession of one litre of arrack near Thannikkara temple 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 made over to the ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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. They 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 6. and proved Exts. P1 to P8 and MOs 1 and 2. 5. After the closure of the evidence on behalf of the prosecution, 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. The trial Court, after hearing the arguments addressed on both sides, found accused No.1 guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. Accused No.2 was ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** acquitted. 6. Heard Sri. Siju Kamalasanan, the learned counsel appearing for the appellant and Sri.Rajesh A., the learned Senior 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 arrack allegedly recovered from the place of occurrence was eventually subjected to analysis in the Chemical Examiner's Laboratory. 8. The alleged seizure and arrest were effected on 25.06.2002 by the Excise Inspector, Karunagappally. The Detecting Officer prepared Ext.P1 seizure mahazar at the scene of occurrence. He has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample drawn at the scene of occurrence. He has not given evidence as to the nature ``` CRL.A NO. 1900 OF 2008 ``` ..5.. of the seal used. The properties including the sample were produced before the Court only 04.07.2002 which is evident from Ext.P7 list of properties. The prosecution has not offered any explanation for the delay in the production of properties including the sample. 9. In **Ravi v. State of Kerala** [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 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.” 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 ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** production of the property. 10. 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. 11. There is no evidence that the specimen of the seal was produced before the Court and forwarded to the Chemical Examiner’s Laboratory. The forwarding note/requisition for sending sample to the laboratory was not produced and marked. The sample remained in the custody of the property clerk till 04.07.2002. The sample was forwarded to the laboratory on 04.07.2002 through an Excise Guard by name Sreekumar who delivered the sample in the laboratory on 05.07.2002. Neither the property clerk nor the excise guard who delivered the sample in the laboratory was examined by the prosecution to rule out the possibility of the sample being ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** changed or tampered with. 12. 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. 13. 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. 14. 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 ``` CRL.A NO. 1900 OF 2008 ``` ..8.. 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 Court specified that the presumption under Section ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** 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] **.** 15. 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. 16. 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 ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** Analysis Report. 17. 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. 18. In the instant case, the prosecution has not succeeded in proving that the arrack allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. 19. 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 contraband ``` CRL.A NO. 1900 OF 2008 ``` **==> picture [26 x 9] intentionally omitted <==** substance cannot be conclusive proof by itself. The sample seized and that tested have to be co-related. 20. 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. 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 benefit of doubt arising from the absence of link evidence as discussed above. 21. The upshot of the above discussion is that the 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 ``` CRL.A NO. 1900 OF 2008 ``` ..12.. of the offence punishable under Section 8(2) 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; (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