Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU FRIDAY, THE 28TH DAY OF OCTOBER 2022 / 6TH KARTHIKA, 1944 CRL.A NO. 903 OF 2008 AGAINST THE JUDGMENT DATED 18.04.2008 IN SC NO.754/2003 ON THE FILE OF THE ADDITIONAL SESSIONS COURT (ADHOC-III), THALASSERY APPELLANT/ACCUSED: BIJU, S/O MANNATTEL ANTONY, PUNNERI VEETIL, KOLAYAD AMSON, DESOM, PUTHALAM, THALASSERY TALUK. BY ADV SRI.C.P.PEETHAMBARAN RESPONDENT/COMPLAINANT: STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
------------------------------------------- Crl.A No. 903 of 2008 --------------------------------------------- Dated this the 28th day of October, 2022
JUDGMENT
Aggrieved by the judgment dated 18.04.2008, passed by the Additional Sessions Court (Adhoc-III), Thalassery in Sessions Case No.754 of 2003, the accused has preferred this appeal. The appellant/ accused 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 01.09.1999 at 5.00 p.m., the accused was found in possession of 4 ½ litres of arrack at Puthalam, 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 55(a) 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 charges were framed against him, for the offences punishable under Sections 8(2) and 55(a) of the Abkari Act. The
accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences.
4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P7, and MO 1.
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 under Section 8(2) of the Abkari Act and was convicted thereunder.
6. Heard Sri. C.P.Peethambaran, the learned counsel appearing for the appellant/accused and Smt. Rekha S. the learned Senior 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 failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory.
8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:-
(a) The delay in the production of the properties including the sample, before the Court was not satisfactorily explained.
(b) Ext.P3 seizure mahazar does not contain the specimen of the seal used by the detecting officer.
(c) There is no evidence to show that the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for verification.
9. The alleged seizure was effected on 01.09.1999. Ext.P5,
property list shows that the properties, including the sample, were produced before the Court on 05.09.1999. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties before the Court.
10. In Ravi v. State of Kerala [2011 (3) KHC 121] on the question of delay in the production of properties, a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows:
1. It is not necessary to produce the article seized
under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is
practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” (emphasis supplied) In Ravi's case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property.
11. There is no satisfactory explanation for the delay in the
production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out.
12. Ext.P3 seizure mahazar is the contemporaneous
document prepared by the detecting officer to evidence seizure and arrest. Ext.P2 does not contain the specimen 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. The detecting officer has also not produced the specimen of the seal before the Court to ensure the genuineness of the sample produced. In Ext.P6 forwarding note/requisition for sending sample, the specimen of the seal used by the detecting officer has not been incorporated. What is incorporated in Ext.P6 is the seal of the Court concerned from where the sample was forwarded to the laboratory.
13. There is no evidence to show that the specimen seal used by the detecting officer was forwarded to the Chemical Examiner's Laboratory for verification.
14. 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.
15. 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.
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. In the instant case, the prosecution failed to establish
that the contraband seized from the place of occurrence was subjected to analysis in the Chemical Examiner's Laboratory. Therefore, Ext.P7 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. Therefore, the appellant/accused is entitled to the benefit of doubt.
19. Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU JUDGE VPK