Kerala High Court
Baby vs State Of Kerala on 27 May, 2024
Author: K.Babu
Bench: K. Babu
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
CRL.A NO. 428 OF 2009
AGAINST JUDGMENT DATED 16.02.2009 IN SC NO.553 OF 2006 OF
ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD
APPELLANT/1ST ACCUSED IN CUSTODY:
BABY,
S/O MATHAI,PAKKUMNEN HOUSE,
EZHAKKARANADU, MOOOVATTUPUZHA TALUK.
BY ADVS.
SMT.SRUTHY K K
SRI.P.VIJAYA BHANU (SR.)(K/421/1984)
SRI.P.M.RAFIQ(K/45/2001)
SRI.M.REVIKRISHNAN(K/1268/2004)
SRI.AJEESH K.SASI(K/166/2006)
SMT.SRUTHY N. BHAT(K/000579/2017)
SRI.RAHUL SUNIL(K/000608/2017)
SMT.NIKITA J. MENDEZ(K/2364/2022)
SMT.NANDITHA S.(K/000498/2024)
SRI.SOHAIL AHAMMED HARRIS P.P.(K/1395/2020)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
2 THE EXCISE CIRCLE INSPECTOR
PALAKKAD EXCISE RANGE
BY ADV.
SRI.G.SUDHEER, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 27.05.2024,
ALONG WITH CRL.A.429/2009, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
Crl.A.Nos.428 and 429 of 2009
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 27TH DAY OF MAY 2024 / 6TH JYAISHTA, 1946
CRL.A NO. 429 OF 2009
AGAINST THE JUDGMENT DATED 16.02.2009 IN SC NO.553 OF 2006
OF ADDITIONAL SESSIONS COURT (ADHOC-I), PALAKKAD
APPELLANT/2ND ACCUSED IN CUSTODY:
ANIL,
S/O RAMU, KODAL HOUSE,
AMALAPURAM, KUNNATHUNADU TALUK.
BY ADV
SRI.V.A.JOHNSON (VARIKKAPPALLIL)
RESPONDENT/COMPLAINANT:
1 STATE OF KERALA,
REP.BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
ERNAKULAM
2 THE EXCISE CIRCLE INSPECTOR,
PALAKKAD EXCISE RANGE.
BY ADV.
SRI.G.SUDHEER, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
27.05.2024, ALONG WITH CRL.A.428/2009, THE COURT ON THE SAME
DAY DELIVERED THE FOLLOWING:
Crl.A.Nos.428 and 429 of 2009
3
K.BABU, J.
-------------------------------------------
Crl.A Nos. 428 and 429 of 2009
---------------------------------------------
Dated this the 27th day of May, 2024
COMMON JUDGMENT
These two appeals are directed against the judgment dated
16.02.2009 passed by the Additional Sessions Court (Adhoc-I),
Palakkad in S.C.No.553/2006. Accused No.1 is the appellant in
Crl.A.No.428/2009. The appellant in Crl.A.No.429/2009 is accused
No2. Accused Nos. 1 and 2 were convicted under Section 55(a) of
the Abkari Act and sentenced to undergo rigorous imprisonment
for a term of seven years each and pay a fine of Rs.3 Lakhs each.
2. The prosecution case is that on 11.10.2004, the
appellants were found in possessing 178 cans each containing 35
litres of spirit in a lorry bearing registration No.KL-7-W-2175 at
Walayar, 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 55(a) of the Abkari Act before the jurisdictional
Magistrate. The case was committed to the Sessions Court from
Crl.A.Nos.428 and 429 of 2009
where it was made over to the trial Court. On the appearance of
the accused charge was framed against them for the offence
punishable under Section 55(a) of the Abkari Act. The accused
pleaded not guilty to the charge and therefore, they came to be
tried by the trial Court for the aforesaid offence.
4. The prosecution examined PWs. 1 to 6 and proved Exts.P1
to P9.
5. After the closure of evidence on behalf of the prosecution,
statement of the accused under Section 313 Cr.P.C. was recorded.
They pleaded innocence. The trial Court heard the matter under
Section 232 Cr.P.C. and found evidence against the accused and
hence they was called upon to enter on their defence and adduce
evidence, if any, they 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 55(a) of
the Abkari Act and convicted them thereunder.
6. Heard the learned counsel appearing for the
appellants/accused and the learned Public Prosecutor appearing
for the respondent.
7. The learned counsel for the appellants challenge the
judgment of conviction and sentence on the ground that the
Crl.A.Nos.428 and 429 of 2009
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 their contentions:
(i) Ext.P1 mahazar does not contain a legible
specimen of the seal stated to have been used at the
place of occurrence.
(ii) The various officials who handled the sample
during its transit from the Court to the laboratory were
not examined by the prosecution.
9. The alleged seizure was effected on 11.10.2004. The
detecting officer had prepared Ext.P1 mahazar at the scene of
occurrence. He had drawn the sample at the scene. The
specimen of the seal affixed in Ext.P1 is not legible and not
sufficient to identify the nature of the seal used. There is also no
evidence to show that the specimen of the seal was produced
before the Court when the properties were produced. The list of
properties is not seen marked.
10. In Bhaskaran v. State of Kerala (2020 KHC 5296),
this Court held that the nature of the seal used by the detecting
Crl.A.Nos.428 and 429 of 2009
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.
11. The sample remained in the custody of the property
clerk till 19.11.2004. Ext.P9, the copy of forwarding note does not
contain the name of the Excise official with whom the sample was
forwarded to the laboratory. The space meant for entering the
name of the Excise Guard with whom the sample was forwarded
left vacant. Ext.P6, Certificate of Chemical Analysis shows that the
sample was forwarded to the laboratory on 19.11.2004. It is
further seen that the sample reached the laboratory on
20.11.2004 through an Excise Guard by name Sri.Anvar. Neither
the property clerk nor the Excise Guard Sri.Anvar who delivered
the sample to the laboratory was not examined by the prosecution
to rule out the possibility of the sample being changed or
tampered with.
12. 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
Crl.A.Nos.428 and 429 of 2009
the Chemical Examiner's laboratory.
13. 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.
14. 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.
15. In Sathi v. State of Kerala (2007 (1) ILR 718
(Ker.)), this Court re-emphasized on the requirement of strict
Crl.A.Nos.428 and 429 of 2009
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).
16. In the present case, the prosecution failed to establish
the scene of custody of the sample during its transit from the
Court to the laboratory. Ext.P6 Certificate of Chemical Analysis has
no evidentiary value
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 the contraband substance cannot be
conclusive proof by itself and that the sample seized and that
tested have to be co-related.
18. In the instant case, the prosecution was unable to
Crl.A.Nos.428 and 429 of 2009
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.
19. 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 appellants/accused Nos. 1 and 2 are acquitted of the
offence alleged. They are set at liberty.
These Criminal Appeals are allowed as above.
Sd/-
K.BABU
JUDGE
VPK
