Kunjappan, S/O. Mathai vs State Of Kerala
2022 Latest Caselaw 6550 Ker

          IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
             THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944
                   CRL.A NO. 1071 OF 2007
AGAINST THE JUDGMENT IN SC 811/2002 OF SPECIAL COURT FOR
               ABKARI ACT CASES, KOTTARAKKARA
   CP 182/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS -
                      II,KOTTARAKKARA
APPELLANT/ACCUSED:

          KUNJAPPAN, S/O. MATHAI,
          AGED 1 YEARS
          AJI VILASOM (KALOOLIL VEEDU), CHANKULAM MURI,,
          POOYAPPALLY VILLAGE.
          BY ADV SRI.VINOY VARGHESE KALLUMOOTTILL


RESPONDENTS/COMPLAINANT/STATE:

   1      STATE OF KERALA
          REP. BY PUBLIC PROSECUTOR, HIGH COURT OF
          KERALA,, ERNAKULAM.
   2      EXCISE INSPECTOR
          CHADAYAMANGALAM EXCISE RANGE.
          BY SMT. REKHA.S. (SR.P.P)


OTHER PRESENT:




       THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
 CRL.A NO. 1071 OF 2007
                               ..2..




                         JUDGMENT

Aggrieved by the judgment dated 12.06.2007,

passed by the Additional Sessions Court, Kottarakkara, in

Sessions Case No.811/2002, the accused has preferred

this appeal. The appellant was convicted under Sections

55(a) and 8(2) 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 on 02.08.1999, at

1 p.m. the accused was found in possession of 17

polythene packets containing 150ml arrack each at

Kattachal in violation of the provisions of the Abkari Act.

3. After completing the investigation, final report

was submitted against the accused for the offences

punishable under Sections 55(a) and 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 CRL.A NO. 1071 OF 2007 ..3..

charges were framed against him for the offences

punishable under Sections 55(a) and 8(2) of the Abkari

Act. The accused pleaded not guilty to the charges and

therefore, he came to be tried by the trial Court for the

aforesaid offences.

4. The prosecution examined PWs.1 to 5 and

proved Exts. P1 to P6 and MO 1 to MO 4 series.

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

court, after hearing the arguments addressed on both

sides, found the accused guilty of the offences under

Sections 55(a) and 8(2) of the Abkari Act and convicted

him thereunder. The accused was sentenced to undergo

simple imprisonment for a term of two years and pay a CRL.A NO. 1071 OF 2007 ..4..

fine of Rs.1 Lakh under Sections 55(a) of the Abkari Act.

No separate sentence was imposed under Section 8(2) of

the Act.

6. Heard Sri. Vinoy Varghese Kallummoottil, the

learned counsel appearing for the appellant/accused and

Smt. Rekha S., the learned Senior Public Prosecutor

appearing for the respondent.

7. The learned counsel for the appellant 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) PW1, the detecting officer, has not given

evidence as to the nature of the seal used.

(iii) The specimen seal stated to have been used

was not produced before the Court and

forwarded to the laboratory to ensure the CRL.A NO. 1071 OF 2007 ..5..

genuineness of the contraband substance

produced before the Court.

8. The seizure was effected on 02.08.1999, by

PW2, Excise Inspector, Excise Special Squad, Kollam.

PW2 prepared Ext.P1 seizure mahazar evidencing seizure

and arrest. Ext.P1 does not contain the nature and

description of the seal stated to have been affixed on the

bottle containing the sample. PW2 has not given

evidence as to the nature of the seal used. The specimen

of the seal was not produced before the Court to ensure

the genuineness of the sample produced. Forwarding

note/requisition for sending sample was also not

produced and marked. The forwarding note contains the

specimen of the seal to facilitate the examiner to verify

the genuineness of the sample forwarded for analysis.

9. The sample was produced before the Court on

03.08.1999. The sample remained in the custody of the

property clerk of the Court. It was forwarded to

Chemical Examiner as per letter dated 12.08.1999. The CRL.A NO. 1071 OF 2007 ..6..

sample was delivered in the laboratory by Shri.

Sudhakaran Kani, an Excise Guard. The property clerk of

the Clerk and the excise guard concerned were not

examined by the prosecution to rule out the possibility of

the sample being changed or tampered with.

10. 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.

11. 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 tamper-

proof 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. CRL.A NO. 1071 OF 2007 ..7..

12. 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 tamper-

proof 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 CRL.A NO. 1071 OF 2007 ..8..

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].

13. 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.

14. 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, CRL.A NO. 1071 OF 2007 ..9..

no evidentiary value can be attached to the chemical

analysis report.

15. 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.

16. In the present case the prosecution failed to

establish that the contraband allegedly seized from the

accused was forwarded to the Chemical Examiner's

Laboratory.

17. 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

substance cannot be conclusive proof by itself. The CRL.A NO. 1071 OF 2007 ..10..

sample seized and that tested have to be co-related.

18. 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.

19. 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. Therefore, the appellant/accused is entitled to

the benefit of doubt.

20. 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 is therefore found not guilty of the

offence alleged.

In the result, CRL.A NO. 1071 OF 2007 ..11..

(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 charges;

(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

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