Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 14TH DAY OF MARCH 2024 / 24TH PHALGUNA, 1945 CRL.A NO. 747 OF 2009 AGAINST THE JUDGMENT DATED 18.02.2009 IN SC NO.326 OF 2008 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK NO.I, THRISSUR APPELLANT/ACCUSED: VASU, S/O MADAMBI, ARUNGOTTIKKARA VILLAGE, THALASSERI DESOM,TALAPPILLY TALUK. BY ADV SRI.M.SHAJU PURUSHOTHAMAN RESPONDENT/COMPLAINANT:
STATE REP.BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,ERNAKULAM, REPRESENTING THE EXCISE INSPECTOR, WADAKKANCHERY RANGE. BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 14.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
-------------------------------------- Criminal Appeal No.747 of 2009 --------------------------------------- Dated this the 14th day of March, 2024
JUDGMENT
Aggrieved by the judgment dated 18.02.2009, passed by the Additional District and Sessions Court, Fast Track No.I, Thrissur in S.C.No.326/2008, the appellant/accused has preferred this appeal. The appellant was convicted under Section 58 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 09.01.2006 at about 1.15 p.m,
the accused was found in possession of 2 litres of arrack in a plastic can at Thalassery Desom in Arangottukara village 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 58 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 7 and proved Exts.P1 to P8 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 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 P1 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 its transit from the Court to the laboratory were not examined by the prosecution.
9. The alleged seizure was effected on 09.01.2006. The
detecting officer had prepared Ext.P1 seizure mahazar. He had drawn the sample at the scene of occurrence. Exhibit P1 seizure mahazar does not contain the nature and the description of the seal stated to have been affixed on the bottle containing the sample. There is nothing to show that the specimen of the seal was produced before the Court at the time of production of the properties including the sample.
10. In Bhaskaran K. v. State of Kerala and another (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. The sample remained in the custody of the property clerk
till 20.01.2006. The sample was delivered in the laboratory through an Excise Guard by name S.A Dileep on 21.01.2006. The property clerk and 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 is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314].
12. Since the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P5 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. 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]}.
15. 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.
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 Criminal Appeal is allowed as above. Sd/- K.BABU, JUDGE KAS