Kerala High Court
Sasi vs State Of Kerala on 4 June, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 4TH DAY OF JUNE 2024 / 14TH JYAISHTA, 1946
CRL.A NO. 1816 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 03.08.2009 IN SC NO.1289 OF 2006
OF ADDITIONAL SESSIONS COURT (ADHOC)-II, KOZHIKODE
APPELLANT/ACCUSED:
SASI
S/O NARAYANAN,
KORACHAMAKANDY HOUSE, THIKKODI AMSOM, PURAKKAD DESOM,
KOYILANDY.
BY ADV SRI.SANTHARAM.P
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SRI.G.SUDHEER, PP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
04.06.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 1816 OF 2009 2
JUDGMENT
Aggrieved by the judgment dated 03.08.2009 passed by the Additional District and Sessions Judge, Fast Track (Ad hoc-II) Kozhikode, the accused has preferred this Appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.1 lakh.
2. The prosecution case is that on 25.10.2004 at 2.30 p.m, the accused was found in possession of 10 litres of arrack in a plastic can at the pathway in front of the house of Vazhakandi Chathu Nair situated on the side of Nellimukku - Theyyampadippara road 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 Trial Court. On the appearance of the accused, charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he CRL.A NO. 1816 OF 2009 3 came to be tried by the Trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P6 and MO1.
5. After the closure of the prosecution evidence, 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. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence.
6. Heard the learned counsel appearing for the appellant/accused and 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 allegedly seized from the place of occurrence has eventually reached the Chemical Examiner's Laboratory.
8. The learned counsel for the appellant relied on the CRL.A NO. 1816 OF 2009 4 following circumstances to substantiate his contentions:
(i) The various officials who handled the sample during the course of its transit from the Court to the Chemical Examiner's Laboratory were not examined by the prosecution.
(ii) The prosecution failed to explain the delay in the analysis of the sample.
9. The alleged seizure was effected on 25.10.2004. PW1, the Preventive Officer attached to the Excise Range Office, Koyilandy detected the offence. He prepared Ext.P1 seizure mahazar. He arrested the appellant at the scence of occurrence. He drew the sample from the contraband seized and produced before the Court on 26.10.2004.
10. The prosecution has not given evidence as to who received the sample in the Magistrate Court. It must be the Property Clerk or the Junior Superindendent of the Court concerned. The prosecution has not given evidence as to the date on which the sample was forwarded to the Chemical Examiner's Laboratory. Ext.P5 certificate of chemical analysis CRL.A NO. 1816 OF 2009 5 shows that the sample has been forwarded to the laboratory on 27.10.2004. The sample was delivered to the laboratory by an Excise Guard by name M.Haris on 27.10.2004 itself.
11. The learned counsel for the appellant submitted that the prosecution has not given evidence as to who kept the sample till 26.10.2004, the date on which it was produced before the Court. He further contended that there is no evidence as to who delivered the sample in the Court. The learned counsel contended that though various officials handled the sample, from its transit from the place of occurrence to the Court and then to the laboratory, they have not been examined by the prosecution and hence, there is possibility of the sample being changed or tampered with. None of the witnesses gave evidence regarding the tamperproof handlling of the sample during its transit from the place of occurrence to the laboratory through the Court. The Excise Official who delivered the sample in the Court, the Officer who received the sample in the Court concerned and the Excise Official who delivered the sample in the laboratory were not examined by the prosecution. The non- examination of these officials is fatal to the prosecution case. This is fortified by the decision of the Apex Court in State of CRL.A NO. 1816 OF 2009 6 Rajasthan v. Daulat Ram [AIR 1980 SC 1314].
12. The learned counsel for the appellant further submitted that though the sample reached the laboratory on 27.10.2004, it was subjected to analysis only on 30.11.2005. It is contended that the delay in the analysis of the sample has also not been explained by the prosecution.
13. Since the prosecution failed to examine the various officials who handled the sample during its transit from the Court to the laboratory, the necessary conclusion is that the prosecution failed to connect the accused with the contraband allegedly seized. The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.
14. 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.
15. It is settled that the prosecution in a case of this nature can succeed only if it is proved that the sample which was CRL.A NO. 1816 OF 2009 7 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]}
16. 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.
17. 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 accused is acquitted of the offence alleged. He is set at liberty.
The Criminal Appeal is allowed as above.
Sd/-
K. BABU JUDGE Sru