Kerala High Court
Chandran vs State Of Kerala on 5 April, 2024
Author: K. Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 5TH DAY OF APRIL 2024 / 16TH CHAITHRA, 1946
CRL.A NO. 949 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 31.03.2009 IN SC NO.933
OF 2002 OF ADDITIONAL DISTRICT COURT (ADHOC) III,
THIRUVANANTHAPURAM
APPELLANT/S:
CHANDRAN
VETTUKADU VEEDU, PAZHAYA UCHAKKADA,, KARODE
DESOM,, KARODE VILLAGE,, NEYYATTINKARA TALUK.
BY ADV SRI.M.SREEKUMAR
RESPONDENT/S:
STATE OF KERALA
THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY GOVERNMENT PLEADER SRI G SUDHEER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 05.04.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A.No.949 of 2009 2
K. BABU, J
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Crl Appeal No.949 of 2009
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Dated this the 5th day of April, 2024
JUDGMENT
Aggrieved by the judgment dated
31.03.2009, passed by the Additional Sessions Court (Fast
Track -III), Thiruvananthapuram in S.C.No. 933/2002, the
appellant/accused has preferred this appeal. The appellant
was convicted under Section 8(2) of the Abkari Act and
sentenced to undergo simple imprisonment for a term of
one year and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 07.04.1998 at
11.00 a.m., the accused was found in possession of 4.5
litres of arrack at New Uchakkada in Thirupuram 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(i) 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 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 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 P8 and MO1.
5. After the closure of evidence on behalf of the
prosecution, 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. The trial Court,
after hearing the arguments addressed on both sides,
found the accused guilty of the offence punishable under
Section 8(2) of the Abkari Act and convicted him
thereunder.
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 seized from the place of occurrence
eventually reached the Chemical Examiner's Laboratory.
8. The learned counsel relied on the following
circumstances to substantiate his contentions:
(i) The detecting officer had not prepared seizure
mahazar at the scene of occurrence.
(ii) The specimen of the seal was not produced
before the Court.
(iii)The forwarding note was not produced and
marked.
(iv)The various officials who handled the sample
during the course of its transit from the Court to the
laboratory were not examined.
9. The detecting officer had not prepared seizure
mahazar at the scene of occurrence, which is a
contemporaneous document to evidence seizure. He has
also not produced the specimen of the seal before the
Court at the time of production of properties before the
Court and has not given evidence as to the nature of the
seal used. The specimen of the seal was not produced
before the Court to establish the genuineness of the
sample produced. There is nothing to show that the
specimen of the seal was forwarded to the Chemical
Examiner's Laboratory for comparison. The forwarding
note which contains the specimen of the seal used has not
been produced and marked.
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.
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.
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 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 S. 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, 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. A survey of the precedents on the subject leads
to the conclusion that strict compliance of the rigors of the
statute and insistence on link evidence to ensure that the
chain of allegations against the accused is substantiated
to the fullest is the requirement of law and mandatory to
establish a charge alleging the offence punishable under
the Abkari Act.
17. The sample was received in the Court by the
Junior Superintendent of the Court, which remained in the
custody of the Property Clerk and was delivered in the
laboratory by an Excise Guard by name Sri. Sukumaran
Nair. The Junior Superintendent of the Court and Sri.
Sukumaran Nair, the Excise Guard who delivered the
sample in the laboratory were not examined by the
prosecution to rule out the possibility of the sample being
changed or tampered with. Non-examination of those
officials who handled the sample during the course of its
transit from the Court to the laboratory is fatal to the
prosecution as prosecution failed to rule out the possibility
of the sample being changed or tampered with. This view
is fortified by the decision of the Apex Court in State of
Rajasthan v. Daulat Ram (AIR 1980 SC 1314).
18. The resultant conclusion is that the prosecution
failed to establish that the contraband substance allegedly
seized from the place of occurrence was subjected to
analysis in the Chemical Examiner's Laboratory. Therefore,
Ext.P7 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 the
contraband substance cannot be conclusive proof by itself
and that the sample seized and that tested have to be co-
related.
20. 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.
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
appellant/accused is acquitted of the offence alleged. He
is set at liberty. Any amount deposited by the accused as
per the interim orders of the Court shall be disbursed to
him as per law.
The Criminal Appeal is allowed as above.
Sd/-
K.BABU, JUDGE
kkj
