This criminal appeal quashed a conviction under Section 8(2) of the Abkari Act for possession of illicit arrack. The High Court held the prosecution failed to discharge its burden regarding the chain of custody and lack of evidence linking the laboratory-tested sample to the seized substance, warranting acquittal.
Appellant acquitted and set at liberty.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
FRIDAY, THE 22ND DAY OF JULY 2022 / 31ST ASHADHA, 1944
CRL.A NO. 2941 OF 2008
AGAINST THE JUDGMENT IN SC 803/2006 OF ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK (ADHOC-I), KOZHIKODE
APPELLANT/ACCUSED:
DEVI,W/O LATE CHERIYEKKAN, AGED 67 YEARS, MADATHIL HOUSE, NEDIYANAD AMSOM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADVS. SRI.M.ASOKAN SRI.DEVAPRASANTH.P.J.
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV. SMT. REKHA.S. (SR.PUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 22.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.2941 of 2008
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K.BABU, J.
Criminal Appeal No.2941 of 2008
Dated this the 22nd day of July, 2022
JUDGMENT
Aggrieved by the judgment dated 24.11.2008, passed by the Additional District and Sessions Court, Fast Track (Adhoc-I), Kozhikode in S.C.No.803/2006, the appellant/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 one year and pay a fine of Rs.1 Lakh.
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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.
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prosecution failed to show that the contraband substance allegedly seized from the possession of the accused was subjected to analysis in the Chemical Examiner's Laboratory.
date on which the sample was forwarded to the laboratory. Going by Ext.P6, it is seen that the sample was forwarded by the Judicial First Class Magistrate-I, Thamarassery as per letter dated 07.08.2002. The alleged seizure was on 16.08.2002. Therefore, the possibility that the sample subjected to analysis was changed, cannot be ruled out.
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the sample to the laboratory. None of those officials were examined to establish the tamper-proof despatch of the sample to the laboratory. Non-examination of those officials is fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with.
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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 reemphasized 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
Crl.A No.2941 of 2008
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Court in Ravi v. State of Kerala [2011 (3) KLT 353].
of the sample this Court in Krishnadas v. State of Kerala [2019 KHC 191] held as follows:
In the present case, the delay in the analysis of the sample remained unexplained.
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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
2 issues framed by the court
Whether the prosecution established an unbroken chain of custody proving the seized illicit arrack was analyzed in the Chemical Examiner's laboratory.
Whether unexplained delays in sending and analyzing the sample create a benefit of doubt under the Abkari Act.
Colour shows how this judgement treated each authority
Sasidharan v. State of KeralaRelied on¶41
Sasidharan v. State of Kerala [2007 (1) KLT 720]
State of Rajasthan v. Daulat RamReferred¶41
State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] · Who else cites this
Sathi v. State of KeralaRelied on¶44
Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)] · Who else cites this
Ravi v. State of KeralaAffirmed¶47
Ravi v. State of Kerala [2011 (3) KLT 353]
Krishnadas v. State of KeralaReferred¶50
Krishnadas v. State of Kerala [2019 KHC 191]
Vijay Pandey v. State of U.PReferred¶55
Vijay Pandey v. State of U.P (AIR 2019 SC 3569) · Who else cites this
1 provisions across 1 enactments
DEVI
THE STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
