The High Court set aside conviction under Section 8(2) of the Abkari Act. The court held the prosecution failed to prove the chain of custody for the seized contraband sample between its production in Court and delivery to the Chemical Examiner, leading to acquittal.
Accused acquitted of the offence alleged and set at liberty.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
THURSDAY, THE 8TH DAY OF DECEMBER 2022 / 17TH AGRAHAYANA, 1944
CRL.A NO. 2431 OF 2008
AGAINST THE JUDGMENT IN SC 471/2006 OF ADDITIONAL DISTRICT COURT
(ADHOC), KOZHIKODE
APPELLANT/ACCUSED:
KRISHNAN
AGED 45 YEARS, KALLADIKUNNUMMAL HOUSE,
PUTHUPPADY AMSOM, DESOM, KOZHIKODE TALUK.
BY ADV SRI.SUNNY MATHEW
RESPONDENT/COMPLAINANT:
STATE OF KERALA
INSPECTOR, THAMARASSERY EXCISE RANGE,
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT. REKHA,GP
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
08.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
CRL.A 2431 of 2008 2
K.BABU, J.
CRL.A 2431 OF 2008
Dated this the 8th day of December, 2022
JUDGMENT
Aggrieved by the judgment dated 26.11.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-1), Kozhikode in S.C.No.471/2006, 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 two years and pay a fine of Rs.1 Lakh.
The case was committed to the Sessions Court, from where it was
CRL.A 2431 of 2008 3
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 charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence.
Public Prosecutor appearing for the respondent.
CRL.A 2431 of 2008 4
the ground that the prosecution failed to rule out the possibility of the sample being changed or tampered with during its transit from the Court to the Laboratory.
Ext.P3, Certificate of the Chemical Analysis, the sample was forwarded on 11-10-2002, but the same reached the laboratory only on 16-10-2002. I have gone through Ext.P3, Certificate of Chemical
Analysis. Ext. P3 shows that the sample was forwarded to the laboratory as per letter dated 11-10-2002 of the JFMC-I, Thamarassery. It further shows that the sample reached the laboratory on 16-10-2002. The sample was delivered in the laboratory by Sri. Roy. K. Paul, an Excise Guard. Neither the property clerk who handled the sample at the time of sending the
CRL.A 2431 of 2008 5
same from the Court nor the excise guard who delivered the sample in the laboratory was examined by the prosecution. In the absence of any contra evidence, this Court comes to the interference that the sample was forwarded on 11-10-2002, but the same reached the laboratory only on 16-10-2002. The prosecution has not given evidence as to the custody of the sample during the interregnum from 11-10-2002 to 16-10-2002.
“Unless it is proved by the prosecution that the article reached the chemical examiner's lab without any tampering or in a tamper proof condition and explaining the delay in producing the same by examining the said police constable through whom it was forwarded to the lab, it cannot be said that the prosecution has proved beyond reasonable doubt that the sample reached the chemical examiner's lab in a tamper proof condition and the report relates to the representative sample said to have been taken from the contraband article alleged to have been seized from the possession of the accused. This benefit must be given to the accused.”
CRL.A 2431 of 2008 6
CRL.A 2431 of 2008 7
reaches the laboratory is required to be established by the prosecution.
CRL.A 2431 of 2008 8
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) .
CRL.A 2431 of 2008 9
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]}.
The conviction and sentence recorded by the trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
Sd/-
K.BABU JUDGE
mtk
3 issues framed by the court
Whether the prosecution discharged its burden to establish an unbroken chain of custody for the seized sample from the place of seizure to the Chemical Examiner's laboratory.
Whether the absence of evidence regarding who handled the sample during the transit from Court to Laboratory creates reasonable doubt.
Whether the certificate of chemical analysis stands admissible when the prosecution fails to explain the custody gap.
Colour shows how this judgement treated each authority
Viswanathan v. State of KeralaRelied on¶43
[2016 (3) KHC 38]
Sasidharan v. State of KeralaRelied on¶51
(2007 (1) KLT 720)
State of Rajasthan v. Daulat RamRelied on¶51
AIR 1980 SC 1314 · Who else cites this
Sathi v. State of KeralaRelied on¶51
(2007 (1) ILR 718 (Ker.)) · Who else cites this
Ravi v. State of KeralaRelied on¶53
(2011 (3) KLT 353)
Vijay Pandey v. State of U.PRelied on¶55
AIR 2019 SC 3569 · Who else cites this
3 provisions across 2 enactments
Krishnan
State of Kerala
K. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court