Allowed

Rajesh v. State of Kerala

Kerala HC7 Dec 2022CRL.A/2481/2008

Case brief

AI extract

What is this about?

The High Court allowed the criminal appeal, holding that the prosecution failed to prove the chain of custody for the seized illicit arrack. Due to unexamined officials handling the sample and unexplained delays in analysis, the chemical analysis report lacked evidentiary value, resulting in the appellant's acquittal.

What did the court decide?

The judgment of conviction and sentence set aside; appellant acquitted, set at liberty, and deposited money disbursed.

Rajesh Vs State of Kerala — Constitutional and Fundamental Rights | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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WEDNESDAY, THE 7TH DAY OF DECEMBER 2022 / 16TH

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AGRAHAYANA, 1944

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CRL.A NO. 2481 OF 2008

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AGAINST THE ORDER/JUDGMENT IN SC 242/2006 OF ADDITIONAL
DISTRICT AND SESSIONS COURT (ADHOC-I), KOZHIKODE

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APPELLANT/ACCUSED:

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RAJESH, S/O KANNAN, CHEVIDANCHERY HOUSE
POOLAKKODE AMSOM, NAYARKUZHI DESOM,, KOZHIKODE
TALUK.

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BY ADV SRI.P.V.ANOOP

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RESPONDENT/COMPLAINANT:

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STATE OF KERALA
PUBLIC PROSECUTOR, HIGH COURT OF KERALA,,
ERNAKULAM.

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OTHER PRESENT:

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SMT REKHA S., SR. PUBLIC PROSECUTOR

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION
ON 07.12.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:

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CRL.A NO. 2481 OF 2008

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JUDGMENT

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Aggrieved by the judgment dated 25.09.2008, passed by the Additional Sessions Court, Fast Track (Adhoc-I), Kozhikode in Sessions Case No.242 of 2006, the accused has preferred this appeal. The appellant 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. One Lakh.

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The prosecution case is that on 29.10.2002 at 9.30 A.M., the accused was found in possession of 5 litres of illicit arrack at Malikathadayi in violation of the provisions of the Abkari Act.

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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

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CRL.A NO. 2481 OF 2008

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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.

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The prosecution examined PWs.1 to 5 and proved Exts. P1 to P8 and MO1.

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After the closure of the evidence on behalf of

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the prosecution, the 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 to 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 convicted him thereunder.

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Heard Sri.P.V.Anoop, the learned counsel appearing for the appellant/accused and Smt. Rekha S.,

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CRL.A NO. 2481 OF 2008

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the learned Senior Public Prosecutor appearing for the respondent.

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The learned counsel for the appellant challenges the judgment of conviction and sentence on the following grounds:-

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The prosecution failed to establish the chain of custody of contraband commencing from the place of occurrence to the stage when the contraband reached the laboratory.

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The various officials who handled the sample from the Court to the laboratory were not examined to rule out the possibility of the sample being changed or tampered with.

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The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory.

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The alleged seizure was effected on 29.10.2002.

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CRL.A NO. 2481 OF 2008

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The accused was arrested from the spot. The properties including the sample were produced before the Court on 29.10.2002 itself. The sample was received by the Junior Superintendent of the Court on that day. It remained in the custody of Property Clerk till it was forwarded to the Chemical Examiner’s Laboratory. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Ext.P6 narrates that the sample was forwarded to the laboratory as per letter dated nil of the Judicial First Class Magistrate, Kunnamangalam. Ext.P6 would further show that an Excise Guard by name K. Gireesan delivered the sample on 13.11.2002. The Junior Superintendent of the Court, the Property Clerk of the Court and Shri, K. Gireesan who delivered the sample in the laboratory were not examined by the prosecution. 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 laboratory.

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CRL.A NO. 2481 OF 2008

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A legal obligation is casted on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner’s Laboratory in a tamperproof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the same reaches the laboratory is required to be established by the prosecution.

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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 tamperproof condition. Relying on State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] in Sasidharan (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

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CRL.A NO. 2481 OF 2008

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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 (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 (supra) and Sathi (supra) has been affirmed by a Division Bench of this Court in Ravi v. State of Kerala [2011 (3) KLT 353] . ontraband substance seized from the place of occurrence eventually reached the Chemical Examiner’s Laboratory.

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In the present case, the prosecution has failed to examine the various officials who handled the sample

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CRL.A NO. 2481 OF 2008

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during its transit from the Court to the laboratory. The resultant conclusion is that the chain of custody of the contraband substance during its transit from the Court to the laboratory has not been established by the prosecution.

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Yet another aspect brought to the notice of the Court by the learned counsel for the accused is the delay in the analysis of the sample. Though the sample reached the laboratory on 13.11.2002, it was analysed only 23.01.2004. On the question of delay in the analysis of the sample, in Krishnadas v. State of Kerala (2019 KHC 191) this Court held thus:

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“6. Ext.P5 report of analysis shows that the sample was received at the laboratory only on 19.9.2003. The detection in this case was made on 26.06.2003. The report of analysis shows that the analysis was made in October, 2004. The report refers to a letter dated 23.7.2003 from the court of the learned Magistrate, Chittur, and the sample was taken to the laboratory by one

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CRL.A NO. 2481 OF 2008

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Excise Guard, Rajeev. Though the sample was sent from the Court as early as on 23/07/2003, it reached the laboratory only in September, 2003. There is no explanation for this delay. Though the sample reached the laboratory in September, 2003, it was analysed only in October, 2004. For this delay of one year also, there is no explanation. These are all suspicious aspects, the benefit of which must go to the accused.”

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In the instant case, the delay of more than 14

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months in analysing the sample has not been explained by the prosecution.

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In the absence of any convincing evidence that the contraband substance allegedly recovered from the scene of occurrence eventually reached the hands of the chemical analysts, Ext. P6, the Certificate of Chemical Analysis, has no evidentiary value.

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The upshot of the above discussion is that the conviction entered by the court below overlooking these

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CRL.A NO. 2481 OF 2008

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vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act.

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In the result,

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(i) The Appeal is allowed ;

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(ii) The judgment of conviction and sentence passed against the accused is set aside ;

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(iii) The accused is acquitted of the offence alleged ;

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(iv) He is set at liberty ;

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(v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as

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per law.

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Sd/K. BABU, JUDGE

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

Rajesh v. State of Kerala

Case brief

What is this about?

What did the court decide?

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