Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K. BABU TUESDAY, THE 31ST DAY OF MAY 2022 / 10TH JYAISHTA, 1944 CRL.A NO. 2367 OF 2008 AGAINST THE JUDGMENT IN SC 595/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT (ADHOC)-II, KOLLAM APPELLANT/ACCUSED: JANAMMA, AGED 57 YEARS, W/O.STEPHEN CARLOSE THAYYIL KIZHZKKETHIL VEEDU, CLAPPANA, KARUNAGAPPALLY, KOLLAM. BY ADV SRI.DILEEP P.PILLAI RESPONDENT/STATE: STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT. REKHA.S (SR.P.P) THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 31.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
K.BABU, J.
-------------------------------------- Criminal Appeal No.2367 of 2008 --------------------------------------- Dated this the 31st day of May, 2022
JUDGMENT
Aggrieved by the judgment dated 19.09.2008, passed by the Additional District and Sessions Court (Adhoc)-II, Kollam in S.C.No.595/2006, 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 13.12.2002, the accused was found in possession of 1 ½ litres of arrack in two bottles.
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 where it was made over to the Trial Court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she 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 P4 and MOs 1 to 3.
5. After the closure of the prosecution evidence, the statement of the accused under Section 313 Cr.P.C. was recorded.
She pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence she was called upon to enter on her defence and adduce evidence, if any, she may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.
6. Heard Sri. Dileep.P.Pillai, 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 following grounds:
(i) The prosecution failed to establish the identity of the person who was carrying the contraband substance at the scene of occurrence.
(ii) The prosecution failed to establish the delay in the production of the sample and the other articles before the Court.
(iii) 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 case of the detecting officer (PW3) is that on the date of
occurrence, the appellant was found carrying the contraband substance at the scene of occurrence and she could not be arrested as no woman police officials/woman Excise officials were available.
9. The appellant was arrested by PW2 on 29.04.2003. PW2 was not in the Excise team which intercepted the lady, who was allegedly carrying the contraband substance at the scene of
occurrence. The detecting officer and the other officials had no previous acquaintance with the accused. They had no opportunity to see the appellant after the incident. They identified the accused in the box, after a long lapse of 6 years.
10. It is well settled that where a witness identifies an
accused, who is not known to him, in the Court for the first time, his evidence is absolutely valueless unless there has been a previous test identification parade to test his powers of observation. If the witness is not provided with an opportunity to test his power of observation, it is wholly unsafe to rely on his bare testimony regarding the identification of an accused for the first time in Court [vide: Kanan and others v. State of Kerala (AIR 1979 SC 1127)], Jameel v. State of Maharashtra [AIR 2007 SC 971], Raja v. State by the Inspector of Police [AIR 2020 SC 254], State (Delhi Administration) v. V.C.Shukla and another [AIR 1980 SC 1382], Mohd.Abdul Hafeez v. State of AP [AIR 1983 SC 367]. So on this ground alone, the prosecution must fail.
11. The properties, including the sample, were produced before
the Court only on 16.12.2002. The delay of three days in producing the articles, including the sample, has not been satisfactorily explained by the prosecution.
12. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows: “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.PC 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 Ravis' 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 an explanation for the delay when there is delayed production of the property.
13. 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.
14. The detecting officer has not narrated the nature and
description of the seal affixed on the bottle containing the sample. No specimen seal was produced before the Court to ensure the genuineness of the sample. Forwarding note/requisition for sending sample to the laboratory was not produced and marked.
15. 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.
16. 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.
17. 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's case (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's case (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 Section 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's case (supra) and Sathi's case (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353].
18. 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.
19. 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.
20. In Ramachandran v. State of Kerala [2021 (1) KLT 793]
while dealing with a case in which forwarding note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper- proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the
Chemical Examiner's laboratory. Therefore, Ext.P4, Certificate of Chemical Analysis, has no evidentiary value.
21. 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.
22. 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]}.
23. 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.
24. The upshot of the above discussion is that the conviction
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. She is set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS