Kerala High Court
K.G.Sunil Kumar vs State Of Kerala on 3 October, 2024
Author: K.Babu
Bench: K. Babu
Crl.A. No.73 of 2016 2024:KER:73307
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.A NO. 73 OF 2016
CRIME NO.60/2012 OF Hosdurg Excise Range Office, Kasargod
AGAINST THE JUDGMENT DATED 31.12.2015 IN SC NO.154 OF
2013 OF ADDITIONAL SESSIONS COURT - II, KASARAGOD
CP NO.169 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST
CLASS -I,HOSDRUG
APPELLANT/ACCUSED:
K.G.SUNIL KUMAR,
AGED 44 YEARS,
S/O.K.G.GOPI, KONGINIKKUNNU,
POYYALAM, THAYANNUR VILLAGE,
HOSDURG TALUK, KASARAGOD DISTRICT.
BY ADVS.
SRI.RAHUL SASI
SMT.NEETHU PREM
RESPONDENTS/COMPLAINANT & STATE:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, KOCHI-31.
2 EXCISE INSPECTOR,
Crl.A. No.73 of 2016 2024:KER:73307
2
HOSDURG EXCISE RANGE,
HOSDURG, KANHANGAD.
BY ADV.
SRI.G.SUDHEER, PP
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
03.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
Crl.A. No.73 of 2016 2024:KER:73307
3
K.BABU, J.
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Crl.A. No.73 of 2016
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Dated this the 3rd day of October, 2024
JUDGMENT
Aggrieved by the judgment dated 31.12.2015, passed by
the Additional Sessions Court-II, Kasaragod in Sessions Case
No.154 of 2013, 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 a term of one
year and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 12.07.2012 at 3 p.m.,
the accused was found in possession of 4 litres of arrack at
Poyyalam 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. He pleaded not
guilty to the charge and therefore, he came to be tried by the
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trial Court for the aforesaid offence.
4. The prosecution examined PWs 1 to 7 and proved Exts.
P1 to P12.
5. After the closure of the 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/accused
challenged 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 eventually reached the Chemical Examiner's
Laboratory.
Crl.A. No.73 of 2016 2024:KER:73307
8. The learned counsel for the appellant/accused relied
on the following circumstances to substantiate his contentions:-
(i) Ext.P4 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 prosecution failed to explain the
custody of the sample during the interregnum
from 12.07.2012 to 11.10.2012.
(iii) The various officials who handled the
sample during its transit from the Court to the
Laboratory were not examined.
9. The alleged seizure was effected on 12.07.2012. The
detecting officer had prepared Ext.P4 seizure mahazar at the
scene of occurrence to evidence seizure. Ext.P4 seizure mahazar
does not contain the nature and description of the seal stated to
have been affixed on the bottle containing the sample. The
detecting officer has not given evidence as to the nature of the
seal used. There is no evidence to show that the specimen of the
seal was produced before the Court at the time of production of
sample to ensure its genuineness.
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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 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. 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.
12. Ext.P12 Certificate of Chemical Analysis shows that
the sample was forwarded to the laboratory as per letter dated
12.07.2012 of the Judicial First Class Magistrate Court-I, Hosdurg.
Ext.P12 further shows that the bottle containing the sample
reached the laboratory only on 11.10.2012 through a Civil Excise
Officer by name Sri.Madhu E.N. The Junior Superintendent of the
Court, the Property Clerk and Sri.Madhu E.N., who delivered the
sample in the laboratory, were not examined by the prosecution.
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In the absence of any convincing evidence, this Court comes to
the inference that the sample was forwarded to the laboratory
on 12.07.2012, but delivered only on 11.10.2012. There is
absolutely no explanation for the the custody of the sample
during the interregnum from 12.07.2012 to 11.10.2012. It is
important to note that various officials who handled the sample
during its transit form the Court to the laboratory were not
examined by the prosecution to rule out the possibility of the
sample being changed or tampered with.
13. 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.
14. A legal obligation is cast on the prosecution to prove
that 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 it reaches the laboratory is
required to be established by the prosecution.
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15. 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 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
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been affirmed by a Division Bench of this Court in Ravi v. State
of Kerala (2011 (3) KLT 353).
16. 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. It is the duty of the prosecution to
establish that the sample seized and that tested are the same.
17. 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]}.
18. The prosecution has not succeeded in establishing
that the contraband seized at the scene of occurrence
eventually reached the Chemical Examiner's Laboratory.
Therefore, Ext.P12, Certificate of Chemical Analysis has no
evidentiary value.
19. In the instant case, the prosecution failed to establish
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the link connecting accused with the contraband seized and the
sample analysed in the laboratory. The conviction and sentence
recorded by the trial Court cannot be sustained.
20. 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 appeal is allowed as above.
Sd/-
K.BABU
JUDGE
VPK
