The High Court allowed the criminal appeal. The court acquitted the appellant because the prosecution failed to prove the chain of custody of the seized arrack sample, citing unexplained delays and lack of specimen seals, rendering the laboratory report valueless.
Accused acquitted and set at liberty; conviction and sentence set aside.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
WEDNESDAY, THE 2ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944
CRL.A NO. 955 OF 2008
AGAINST THE JUDGMENT DATED 28.04.2008 IN SC 847/2004 OF THE
ADDITIONAL SESSIONS COURT (ADHOC-II) KASARAGODE
APPELLANT/ACCUSED:
BATIAPPA @ ANANDA POOJARY,
S/O AMMU POOJARY, 62/03,
MARUTHI NILAYAM, KANDIKE.
BY ADV
SRI.T.B.SHAJIMON
RESPONDENT/COMPLAINANT:
STATE OF KERALA, EXCISE INSPECTOR,
BADIADKA EXCISE RANGE. WHO IS REP:, BEFORE THIS
HON'BLE COURT BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM.
OTHER PRESENT:
BY ADV.
SMT. REKHA.S (SR.P.P)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A.No.955 of 2008
2
K.BABU, J.
Crl.A No. 955 of 2008
Dated this the 2nd day of November, 2022
JUDGMENT
Aggrieved by the judgment dated 28.04.2008, passed by the Additional Sessions Court (Adhoc-II), Kasaragod in Sessions Case No.847 of 2004, the accused has preferred this appeal. The appellant/ accused was convicted under Section 55(a) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh.
Crl.A.No.955 of 2008
3
the charge and therefore, he came to be tried by the trial Court for the aforesaid offence.
Crl.A.No.955 of 2008
4
following circumstances to substantiate his contentions:-
(a) The delay in the production of the properties
including the sample has not been satisfactorily
explained by the prosecution.
(b) The prosecution failed to establish the tamper-proof despatch of the sample to the laboratory.
PW1 the Excise Inspector, Badiyadka. He had drawn the sample at the scene of occurrence. The properties including the sample were produced only on 31.12.2003. Ext.P2 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. No material has been produced before the Court to show that the specimen seal was produced at the time of the production of the sample. No satisfactory explanation has been offered by the prosecution for the delay.
question of delay in the production of properties, a Division Bench of this Court held thus:
“8. We, therefore, answer the reference as follows:
Crl.A.No.955 of 2008
5
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)
In Ravi's case (supra) the Division Bench held 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 production of the property.
Crl.A.No.955 of 2008
6
to satisfy the genuineness of the sample produced in the Court.
the Apex Court held that mere production of a laboratory report
Crl.A.No.955 of 2008
7
that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same.
Resultantly, the conviction and sentence passed by the trial Court cannot be sustained. The accused is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
Sd/-
K.BABU
JUDGE
VPK
2 issues framed by the court
Whether the prosecution established the chain of custody of the seized contraband from the scene to the laboratory.
Whether the unexplained delay in production of seized properties and lack of specimen seal negated the evidence.
Colour shows how this judgement treated each authority
Ravi v. State of KeralaReferred¶41
Ravi v. State of Kerala [2011 (3) KHC 121]
Bhaskaran v. State of KeralaReferred¶53
Bhaskaran v. State of Kerala (2020 KHC 5296)
State of Rajasthan v. Daulat RamReferred¶57
State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314) · Who else cites this
Vijay Pandey v. State of U.PReferred¶59
Vijay Pandey v. State of U.P (AIR 2019 SC 3569) · Who else cites this
Sasidharan v. State of KeralaReferred¶64
Sasidharan v. State of Kerala [2007 (1) KHC 275]
Batiappa @ Ananda Poojary
State of Kerala
K. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court