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
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
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
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
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
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
