Kerala High Court
Suresh vs State Of Kerala on 24 October, 2024
Author: K. Babu
Bench: K. Babu
2024:KER:80203
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 24TH DAY OF OCTOBER 2024 / 2ND KARTHIKA, 1946
CRL.A NO. 7 OF 2016
(CRIME NO.69/2009 OF CHITTAR EXCISE RANGE OFFICE)
(CP NO.35 OF 2012 OF JUDICIAL MAGISTRATE OF FIRST
CLASS ,RANNI)
AGAINST JUDGMENT DATED 11.12.2015 IN SC NO.57 OF 2013 OF
ADDITIONAL DISTRICT & SESSIONS COURT - IV, PATHANAMTHITTA
APPELLANT/ACCUSED:
SURESH, AGED 38 YEARS,
S/O. THANKAPPAN NAIR, AALUNIKUNNAPALLIYIL HOUSE,
THAZHAM MURI, MAILADUMPARA, KOZHENCHERY TALUK,
PATHANAMTHITTA DISTRICT.
BY ADVS.SRI.JOHN MATHEW (THEREZHATH)
SRI.JOBIN JOHN
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT
OF KERALA, ERNAKULAM.
BY PP SMT.NIMA JACOB
THIS CRIMINAL APPEAL HAVING HAVING BEEN FINALLY HEARD
ON 24.10.2024, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
2024:KER:80203
Crl.A.No.7 of 2016 2
JUDGMENT
Aggrieved by the judgment dated 11.12.2015, passed by
the Additional District and Sessions Court-IV, Pathanamthitta in S.C.No.
57/2013, the appellant/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 two years
and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 16.10.2009 at 10.15 pm.,
the accused was found in possession of 90 litres of arrack at
Vadasserikkara 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 67(B) 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
2024:KER:80203
charge and therefore, he came to be tried by the trial Court for the
aforesaid offence.
4. The prosecution examined PWs. 1 to 7 and proved
Exts.P1 to P13 and MOs. 1 to 3.
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 for the appellant/accused and
the learned Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellant challenged the
judgment of conviction and sentence on the ground that the
prosecution has not succeeded in establishing that the contraband
2024:KER:80203
substance seized at the scene of occurrence eventually reached the
Chemical Examiner's Laboratory.
8. The learned counsel for the appellant relied on the
following circumstances to substantiate his contentions:
(i) Exhibit P8 forwarding note does not contain the name of the official
with whom the sample was forwarded to the laboratory.
(ii) The various officials who handled the sample during the course of its
transit from the Court to the laboratory were not examined.
9. Exhibit P8 is the copy of the forwarding note. Exhibit P8
does not contain the name of the official with whom the sample was
forwarded to the laboratory. The space meant for entering the name of
the official with whom the sample was forwarded is left vacant in Ext.
P8. In Ext. P8 the learned Magistrate did not mention the date on which
he made his initial thereon. This is more relevant, particularly when the
name of the official with whom the sample was sent for analysis is not
mentioned. Ext.P12, Certificate of Chemical Analysis shows that the
bottle containing the sample was forwarded to the Chemical Examiner's
Laboratory as per letter dated 23.02.2010 of the Judicial First Class
2024:KER:80203
Magistrate Court, Ranny. 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. Prasad.M. The junior superintendent of the court,
the property clerk and Sri. Prasad.M, 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 various officials who handled the sample during its
transit from the court to the laboratory is fatal to the prosecution.
10. While considering a similar fact situation this Court in
Kumaran v. State of Kerala [2016 (4) KLT 718], held thus:
"7. There is yet another reason to grant benefit of doubt to
the revision petitioner, which is stated hereunder. Ext. P9 is
the copy of the forwarding note whereby the sample was
forwarded to the chemical examiner. The copy of the
forwarding note is silent with regard to the name of the
person with whom the sample was sent for analysis. Ext. P4
Certificate of chemical analysis would show that the sample
was received in the laboratory through the Excise Guard Sri
Dinesan on 2.8.2007. It is not discernible as to why the space
meant for writing the name of the Excise Guard/Preventive
Officer, with whom the sample was sent, remained vacant in
Ext. P9 copy of the forwarding note. This would give an
indication that even at the time when the learned Magistrate
2024:KER:80203
put the initial in the copy of the forwarding note, it was not
decided as to with whom the sample had to be sent to the
laboratory for analysis. It is also not discernible from Ext. P9
as to when the learned Magistrate put the initial in the
forwarding note. The learned Magistrate ought to have written
the date on which the initial was made, which is normally
expected in a case like this. However, since the date was not
written by the learned Magistrate when the initial was made, it
is not clear from Ext. P9 as to how many days before the
despatch of the sample, the learned Magistrate put the initial
in Ext. P9. This becomes relevant, particularly when the space
meant for writing the name of the Excise Guard/Preventive
Officer with whom the sample was sent, remained vacant in
Ext. P9 copy of the forwarding note. In such a situation, it was
imperative for the prosecution to examine the thondy clerk of
the court or the Excise Guard concerned to prove the tamper-
proof despatch of the sample to the laboratory. However,
neither the thondy clerk nor the Excise Guard through whom
the sample was sent to the laboratory was examined in this
case to prove the tamper-proof despatch of the sample to the
laboratory and consequently, the tamper-proof despatch of
the sample to the laboratory could not be established by the
prosecution, which is fatal to the prosecution. For the said
reason also, the revision petitioner is entitled to benefit of
doubt. The courts below did not consider the above vital
aspects while appreciating the evidence and consequently, the
conviction and sentence passed by the courts below cannot be
sustained."
11. 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
2024:KER:80203
sample drawn at the place of occurrence was the sample tested in the
Chemical Examiner's laboratory.
12. 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.
13. 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
2024:KER:80203
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).
14. The resultant conclusion is that the prosecution failed
to establish that the contraband substance allegedly seized from the
place of occurrence eventually reached the Chemical Examiner's
laboratory. Therefore, Ext.P12 Certificate of Chemical Analysis has no
evidentiary value.
15. In Vijay Pandey v. State of U.P ( AIR 2019 SC
2024:KER:80203
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.
16. 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 amount, if any, deposited by the appellant shall be
disbursed to him as per law.
The appeal is allowed as above.
Sd/-
K.BABU
Judge
TKS
