Kerala High Court
Raman Yacob 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. 942 OF 2009
AGAINST THE ORDER/JUDGMENT DATED 06.05.2009 IN SC NO.314
OF 2005 OF ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA
APPELLANT/S:
RAMAN YACOB, S/O KELU
SUGHANDHAGIRI UNIT, AMBA BAGOM, VYTHIRI.
BY ADVS.
SRI.P.S.SREEDHARAN PILLAI
SMT.C.G.PREETHA
RESPONDENT/S:
STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.
BY PUBLIC PROSECUTOR 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.942 of 2009
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K. BABU, J
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Crl Appeal No.942 of 2009
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Dated this the 5th day of April, 2024
JUDGMENT
Aggrieved by the judgment dated
06.05.2009, passed by the Additional Sessions Court
(Adhoc-I), Kalpetta in S.C.No. 314/2005, 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
four months and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 11.12.2003 at
12.20 p.m., the accused was found in possession of two
litres of arrack at Chennayikavala in Kalpetta in violation
of the provisions of the Abkari Act.
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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 came to be tried by
the trial Court for the aforesaid offence.
4. The prosecution examined PWs. 1 to 4 and proved
Exts.P1 to P7 and MOs.1 & 2.
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
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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:
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(i)Ext.P2 seizure mahazar does not contain the
nature and description of the seal stated to have been
affixed on the bottle containing the sample.
(ii)The various officials who handled the sample
during the course of its transit from the Court to the
laboratory were not examined.
9. The alleged seizure was effected on 11.12.2003.
Ext.P2 is the seizure mahazar prepared by the detecting
officer at the scene of occurrence. Ext.P2 does not contain
the specimen of the seal used by the detecting officer. 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.
10. 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
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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.
11. 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. K. Ramesh.
The Junior Superintendent of the Court, the Property Clerk
and Sri. K. Ramesh, 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).
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12. 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.
13. 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.
14. 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
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arising from the absence of link evidence as discussed
above.
15. 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
