Appeal against conviction for violating Abkari Act allowed. High Court acquitted appellant due to failure to prove identity via T.I.P. and inability to establish chain of custody for contraband sample.
Appellant acquitted and set at liberty. Amount deposited, if any, to be disbursed to him.
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
TUESDAY, THE 26TH DAY OF JULY 2022 / 4TH SRAVANA, 1944
CRL.A NO. 862 OF 2008
AGAINST THE ORDER/JUDGMENTSC 79/2007 OF ADDITIONAL SESSIONS COURT
(ADHOC)-II, THODUPUZHA
APPELLANT/S:
BHASKARAN
MANGATTU HOUSE, MULLARINGADU KARA,
VANNAPPURAM, VILLAGE, THODUPUZHA TALUK.
BY ADVS.
SRI.D.PEETHAMBARAN
SRI.SUNNY VARGHESE
RESPONDENT/S:
STATE OF KERALA
REPRESENTED BY THE SUB INSPECTOR OF POLICE,
KALIYAR THROUGH THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
SMT. REKHA.S (SR.P.P)
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
26.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CRL.A NO. 862 OF 2008
2
K.BABU, J.
===================
Crl.A No. 862 OF 2008
=================== Dated this the 26th day of July, 2022
J U D G M E N T
Aggrieved by the judgment dated 09.04.2008, passed by the IVth Additional Sessions Court, (Adhoc-II), Thodupuzha in S.C.No.79/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(b) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh.
was submitted against the accused for the offences
CRL.A NO. 862 OF 2008
3
punishable under Sections 8(2) and 55 (g) 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 him for the offences punishable under Sections 55(b) and 55 (g) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences.
CRL.A NO. 862 OF 2008
4
the accused guilty of the offence under Section 55(b) of the Abkari Act and convicted him thereunder.
a). The prosecution failed to establish the identity of the person, who was in possession of the contraband substance at the time of occurrence.
b). The prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the hands of the Analyst at the Chemical Examiner’s Laboratory.
CRL.A NO. 862 OF 2008
5
that the accused was engaged in the preparation of illicit arrack at his residence, he proceeded to there. On seeing the police team, the accused escaped from the scene. PW5 and the other official witnesses do not have a case that they had previous acquaintance with the accused. They identified the accused in the year 2008, after a long lapse of about 3 years in the Court. Going by the evidence of the official witnesses, they had only a fleeting glimpse of the person, who ran away from the scene of occurrence. No test identification parade was conducted in this case. The witnesses had no opportunity to see the accused after the incident.
CRL.A NO. 862 OF 2008
6
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 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.
a). The delay in the production of properties, including the sample, before the Court has not been properly explained by the prosecution.
b). The officials who handled the sample during its transit from the Court to the Laboratory were not examined to rule out the possibility of the sample being
CRL.A NO. 862 OF 2008
7
changed or tampered with.
“8. We therefore, answer the reference as follows; It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate “forthwith” either by virtue of Section 102(3) Cr.P.C 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)
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
CRL.A NO. 862 OF 2008
8
production of the property.
CRL.A NO. 862 OF 2008
9
those officials would lead to the conclusion that the prosecution failed to rule out the possibility of the sample being changed or tampered with.
KLT 720], this Court had occasion to elucidate on the
CRL.A NO. 862 OF 2008
10
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 Rajastan v. Daulath 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 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
11
CRL.A NO. 862 OF 2008
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 NO. 862 OF 2008
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conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the appellant/accused is acquitted of the offence alleged. He is set at liberty. Any amount deposited by the accused as per the directions of this Court shall be disbursed to him.
The appeal is allowed as above.
Sd/-
K.BABU, JUDGE
LU
2 issues framed by the court
Whether the conviction and sentence can be sustained given the lack of a test identification parade and unexplained delay in producing seized properties before the Court?
Whether the prosecution established the chain of custody proving the seized sample reached the Chemical Examiner's Laboratory in tamper-proof condition?
Colour shows how this judgement treated each authority
Kanan and others v. State of KeralaReferred¶43
Kanan and others v. State of Kerala (AIR 1979 SC 1127) · Who else cites this
Jameel v. State of MaharashtraReferred¶43
Jameel v. State of Maharashtra [AIR 2007 SC 971] · Who else cites this
Raja v. State by Inspector of PoliceReferred¶43
Raja v. State by Inspector of Police (AIR 2020 (SC) 254) · Who else cites this
State of Delhi Administration v. V.C. ShuklaReferred¶43
State (Delhi Administration) v. V.C.Shukla and another (AIR 1980 (SC) 1382) · Who else cites this
Mohd. Abdul Hafeez v. State of A.P.Referred¶43
Mohd. Abdul Hafeez v. State of AP (AIR 1983 (SC) 367) · Who else cites this
Ravi v. State of KeralaApplied¶54
Ravi v. State of Kerala & another [2011 (3) KHC 121]
Sasidharan v. State of KeralaRelied on¶69
Sasidharan v. State of Kerala [2007 (1) KLT 720]
State of Rajasthan v. Daulath RamReferred¶69
State of Rajastan v. Daulath Ram [AIR 1980 SC 1314] · Who else cites this
Sathi v. State of KeralaRelied on¶72
Sathi v. State of Kerala [2007 (1) ILR 718 (Ker.)] · Who else cites this
Ravi v. State of KeralaAffirmed¶75
Ravi v. State of Kerala [2011 (3) KLT 353]
3 provisions across 2 enactments
BHASKARAN
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
K. BABU
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