Kerala HC allowed an appeal against conviction under the Abkari Act. The court held that unexplained delays in producing seized samples, missing specimen seals, and lack of chain of custody evidence rendered the chemical analysis report inadmissible.
The conviction and sentence were set aside. The appellant was acquitted 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
FRIDAY, THE 9TH DAY OF DECEMBER 2022 / 18TH AGRAHAYANA, 1944
CRL.A NO. 881 OF 2007
AGAINST THE JUDGMENT DATED 30TH APRIL 2007 IN SC 577/2003 OF ADDITIONAL DISTRICT COURT (ADHOC), MAVELIKKARA APPELLANT/ACCUSED:
BIJUKUMAR S/O.THANKACHAN, THACHAYIL KIZHAKKETHIL, ARUNOOTTIMANGALAM, MURI, VETTIYAR VILLAGE, MAVELIKKARA.
BY ADVS. SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN SRI.S.SANKARAN THAMPI SRI.V.VENUGOPAL
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR OF MAVELIKKARA RANGE, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF, KERALA, ERNAKULAM.
REKHA- SENIOR GOVERNMENT PLEADER
THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.881 of 2007 2
K.BABU, J. -------------------------------------- Criminal Appeal No.881 of 2007
Dated this the 9th day of December, 2022
JUDGMENT
Aggrieved by the judgment dated 30.04.2007, passed by the Additional District and Sessions Court (Adhoc), Mavelikara in S.C.No.577/2003, the accused has preferred this appeal. The appellant/accused was convicted under Sections 8(2) and 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for a term of three years and pay a fine of Rs.1 Lakh.
Crl.A No.881 of 2007 3
On the appearance of the accused, charges were framed against him for the offences punishable under Sections 8(2) and 55(a) 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.
4. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MOs 1 to 3.
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 adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offences.
Crl.A No.881 of 2007 4
following circumstances to substantiate his contentions.
Crl.A No.881 of 2007 5
properties shows that the properties including sample were received by the Court only on 01.10.2001. The prosecution has not given any satisfactory explanation for the delay in the production of properties including the sample before the Court.
“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)
Crl.A No.881 of 2007 6
and description of the seal stated to have been affixed on the bottle containing the sample. PW1 has not given evidence as to the nature of the seal used. The specimen of the seal was not produced before the Court and forwarded to the laboratory. The production of the specimen seal is highly required to ensure the genuineness of the sample produced before the Court. The specimen of the seal is also required to ascertain the genuineness of the sample placed for examination in the laboratory. The requisition for sending sample/forwarding note had not been produced and marked so as to ensure that the Chemical Examiner was able to verify the genuineness of the sample produced for examination.
Crl.A No.881 of 2007 7
Crl.A No.881 of 2007 8
note/requisition for sending sample to the laboratory was not produced and marked, this Court held that the prosecution could not establish the tamper-proof despatch of the sample to the laboratory as there was no satisfactory link evidence to show that it was the same sample that was drawn from the contraband seized eventually reached the Chemical Examiner's laboratory.
Crl.A No.881 of 2007 9
“ 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.”
20. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamperproof condition.
Crl.A No.881 of 2007 10
The appeal is allowed as above.
Sd/-
K.BABU JUDGE
AP
3 issues framed by the court
Whether the prosecution established tamper-proof despatch of the sample from the Court to the Chemical Examiner's laboratory.
Whether the unexplained delay in producing properties and lack of specimen seal negates the evidentiary value of the chemical analysis report.
Whether the accused is entitled to the benefit of doubt due to failure to establish the link between the accused and the contraband sample.
Colour shows how this judgement treated each authority
Ravi v. State of KeralaRelied on¶38
Ravi v. State of Kerala [2011 (3) KHC 121]
Bhaskaran v. State of KeralaRelied on¶47
Bhaskaran v. State of Kerala (2020 KHC 5296)
Rajamma v. State of KeralaRelied on¶48
Rajamma v. State of Kerala (2014 (1) KLT 506)
Ramachandran v. State of KeralaRelied on¶49
Ramachandran v. State of Kerala (2021 (1) KLT 793)
Viswanadhan v. State of KeralaRelied on¶54
Viswanadhan v. State of Kerala [2016 (3) KHC 38]
1 provisions across 1 enactments
BIJUKUMAR S/O.THANKACHAN
STATE OF KERALA REPRESENTED BY THE EXCISE INSPECTOR
K. BABA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
