In a criminal appeal under the Abkari Act, the High Court of Kerala allowed the prosecution appeal and acquitted the appellant, holding that the failure to produce the specimen seal and establish tamper-proof despatch of the seized liquor sample rendered the Chemical Analysis Report inadmissible.
Appellant acquitted of the offence alleged 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
WEDNESDAY, THE 2ND DAY OF NOVEMBER 2022 / 11TH KARTHIKA, 1944
CRL.A NO. 997 OF 2008
AGAINST THE JUDGMENT IN SC 854/2006 OF ADDITIONAL DISTRICT &
SESSIONS COURT, VADAKARA
APPELLANT/ACCUSED:
NANU,S/O KADUGON, NELLIYULLAKUNIYIL EDACHERY AMSOM, VATAKARA TALUK BY ADVS. SRI.C.R.SIVAKUMAR SMT.MINI.M.NAIR SMT.G.VIDYA
RESPONDENT/COMPLAINANT:
THE STATE OF KERALA,
THE EXCISE PREVENTIVE OFFICER, NADAPURAM EXCISE RANGE THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM
BY ADV SMT. REKHA.S (SR.PPUBLIC PROSECUTOR)
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 02.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.997 of 2008
2
K.BABU, J.
Criminal Appeal No.997 of 2008
Dated this the 2nd day of November, 2022
JUDGMENT
Aggrieved by the judgment dated 16.05.2008, passed by the Additional District and Sessions Court, Vatakara in S.C.No.854/2006, 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.
accused was found in possession of 8 litres of country made liquor near Kunnuchirakkal bridge in Vatakara Taluk in violation of the provisions of the Abkari Act.
The case was committed to the Sessions Court, from where it was
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Crl.A No.997 of 2008
made over to the Trial Court. On the appearance of the accused,
charge 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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Crl.A No.997 of 2008
judgment of conviction and sentence on the ground that the prosecution failed to establish the tamper-proof despatch of the sample from the Court to the laboratory.
(i) The delay in the production of the properties, including the sample, has not been satisfactorily explained.
(ii) The prosecution failed to produce the specimen of the seal before the Court and forwarded the same to the laboratory.
as per the instructions of the Magistrate he produced the
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Crl.A No.997 of 2008
properties, including the sample, before the Judicial Magistrate of First Class, Nadapuram on 01.06.2004. In none of the documents relied on by the prosecution, there is mention of the fact that the properties, including the sample, were produced before the Magistrate Court, Perambra. The defence specifically challenged the version of PW3 that he had produced the sample before the Perambra Court. There was no satisfactory explanation on the part of PW3 regarding this aspect. Therefore, the explanation offered by PW3 regarding the delay in the production of the sample before the Court is not satisfactory. In Ravi v. State of Kerala [2011 (3) KLT 353], on the question of delay in the production of properties, a Division Bench of this Court held as follows:
“8. We, therefore, answer the reference as follows:
(Emphasis supplied)
In Ravis' case (supra) the Division Bench held that production of the
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Crl.A No.997 of 2008
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.
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Crl.A No.997 of 2008
the specimen of the seal was forwarded to the Chemical Examiner for verification.
5296), this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court.
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the sample reached the laboratory on 09.06.2004 through an Excise guard by name K.P.Sankaran. Though the property clerk (PW8) was examined as a witness, he had not given evidence regarding forwarding of the sample to the laboratory. Sri.K.P.Sankaran, the Excise guard had not been examined as a witness. Nonexamination of the Junior Superintendent of the Court and K.P.Sankaran, who delivered the sample to the laboratory, and the lack of evidence regarding the date on which the sample was forwarded to the laboratory are fatal to the prosecution as it failed to rule out the possibility of the sample being changed or tampered with. Absolutely, there is no evidence to establish the tamper-proof despatch of the sample to the laboratory. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314].
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Crl.A No.997 of 2008
Court held that mere production of a laboratory report 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.
Crl.A No.997 of 2008
10
appellant/accused is acquitted of the offence alleged. He is set at liberty.
The appeal is allowed as above.
Sd/K.BABU, JUDGE
KAS
3 issues framed by the court
Whether unexplained delay in production of seized properties and failure to produce specimen seal vitiate the Chemical Analysis Report.
Whether prosecution failed to establish tamper-proof despatch of the sample between court and laboratory.
Whether the accused is entitled to benefit of doubt due to failure to link seized contraband with the analysed sample.
Colour shows how this judgement treated each authority
Ravi v. State of KeralaRelied on¶45
Ravi v. State of Kerala [2011 (3) KLT 353]
Bhaskaran K. v. State of Kerala and anotherRelied on¶58
Bhaskaran K. v. State of Kerala and another (2020 KHC 5296)
Rajamma v. State of KeralaRelied on¶59
Rajamma v. State of Kerala [2014 (1) KLT 506]
State of Rajasthan v. Daulat RamRelied on¶64
State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] · Who else cites this
Vijay Pandey v. State of U.PRelied on¶66
Vijay Pandey v. State of U.P (AIR 2019 SC 3569) · Who else cites this
Sasidharan v. State of KeralaRelied on¶69
Sasidharan v. State of Kerala [2007 (1) KHC 275]
NANU
THE STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
