Somarajan vs State Of Kerala

K.Babu, J

Aggrieved by the judgment dated 06.03.2008, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara in Sessions Case No.346 of 2002, the two accused have preferred this appeal. The appellants/accused Nos. 1 and 2 were convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of five years and pay a fine of Rs.1 Lakh.

The prosecution case is that on 26.06.1999 at 1.00 a.m., The accused were found in possession of 35 litres of arrack at Ambalathumkala in violation of the provisions of the Abkari Act.

After completing the investigation, final report was submitted against the accused for the offence punishable under Sections 55(a) and 55(i) 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 them for the offence punishable under Sections 55(a) and 55(i) of the Abkari Act. They pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offences.

The prosecution examined PWs 1 to 3 and proved Exts. P1 to P6. MOs 1 and 2.

After the closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence, they were called upon to enter on their defence and adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act and convicted them thereunder.

Heard the learned counsel appearing for the appellant/accused and the learned Senior Public Prosecutor appearing for the respondent.

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.

The learned counsel for the appellant/accused relied on the following circumstances to establish his contentions:-

(i) Delay in the production of the properties including the sample has not been satisfactorily explained.

(ii) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.

(iii) The various officials who handled the sample during its transit from the Court to the Laboratory were not examined by the prosecution.

The alleged seizure was effected on 26.06.1999. Exhibit P4, the list of properties shows that the properties, including the sample, were produced before the Court only on 28.07.1999. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court.

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:

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 explanation for the delay when there is delayed production of the property.

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 the sample could not be ruled out.

12 Ext.P1 is the seizure mahazar prepared at the scene of occurrence. The detecting officer has not narrated the nature and description of the seal stated to have been affixed on the bottle containing the sample. The specimen of the seal was not produced before the Court at the time of production of the properties. There is nothing to show the specimen of the seal was forwarded to the Chemical Examiner’s Laboratory for comparison, so as to ensure its genuineness of the sample produced for analysis.

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.

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.

The prosecution has not given any evidence as to the date on which the bottle containing the sample was forwarded to the laboratory. Ext.P6 Certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per letter dated 02.05.2000 of the Judicial First Class Magistrate Court-I, Kottarakara. Ext.P6 further shows that the bottle containing the samples reached the laboratory on 02.05.2000 through the Police Constable No.4115. The sample remained in the custody of the Property Clerk of the Court from 28.07.1999 to 02.05.2000. The custody of the sample during the period from 28.07.1999 to 02.05.2000 has not been satisfactorily explained. Neither the Property Clerk of the Court nor the Police Constable who delivered the sample to the laboratory was examined by the prosecution to rule out the possibility of the sample being changed or tampered with.

As the prosecution failed to establish that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory, Ext.P6 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized.

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 settled that the prosecution in a case of this nature can suceed 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]}.

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.

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 appellants/accused Nos. 1 and 2 are acquitted of the offences alleged. They are set at liberty.

The Criminal Appeal is allowed as above.