Allowed

P.Raman v. State of Kerala

Kerala HC5 Mar 2024CRL.A/1091/2009

Case brief

AI extract

What is this about?

This court allowed a criminal appeal challenging a conviction under the Abkari Act. The High Court acquitted the accused because the prosecution failed to examine officials who handled the seized sample between its seizure and delivery to the Chemical Examiner. The court held this gap broke the chain of custody, rendering the analysis certificate inadmissible.

What did the court decide?

The Criminal Appeal is allowed; the appellant is acquitted of the offence alleged and set at liberty.

P.Raman Vs State of Kerala — Kerala HC (2024) — LawSathi Research

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K. BABU

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TUESDAY, THE 5TH DAY OF MARCH 2024 / 15TH PHALGUNA, 1945

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CRL.A NO. 1091 OF 2009

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AGAINST THE ORDER/JUDGMENT DATED 22.04.2009 IN SC NO.428 OF 2006
OF ADDITIONAL DISTRICT COURT (ADHOC)-II, KALPETTA

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APPELLANT:

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P.RAMAN
S/O PAPPU

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PAINGINIPARAMBIL VEEDU, PAYATUKUNNU, CHEERAL VILLAGE,
SULTHAN BATHERY.
BY ADVS.
SRI.K.RAVEENDRAN
SRI.ANIL KUMAR M.SIVARAMAN

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RESPONDENTS:

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1 STATE OF KERALA PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.

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2THE EXCISE INSPECTOR
EXCISE RANGE OFFICE, SULTHAN BATHERY,WAYANAD.
BY ADV PUBLIC PROSECUTOR

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SRI.G.SUDHEER P P

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
05.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 1091 OF 2009

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K.BABU, J .

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CRL.A.No.1091 of 2009

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Dated this the 5^th day of March, 2024

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J U D G M E N T

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Aggrieved by the judgment dated 22.04.2009, passed by the Additional Sessions Court, Adhoc-II, Kalpetta, in Sessions Case No.428/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8(2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.1 Lakh.

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The prosecution case is that on 16.08.2005, the

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appellant was found in possession of two litres of arrack in Karimkalikunnu at Cheeral village, in violation of the provisions of the Abkari Act.

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After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) 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

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CRL.A NO. 1091 OF 2009

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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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The prosecution examined PWs.1 to 6 and proved Exts.P1 to P7 and MO.1.

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After the closure of prosecution evidence, 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/accused for the aforesaid offence.

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Heard Sri. K.Raveendran, the learned counsel appearing for the appellant/ accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent.

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The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the

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CRL.A NO. 1091 OF 2009

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prosecution failed to establish that the contraband seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.

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The learned counsel for the appellant relied on the following circumstance to substantiate his contentions:-

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i) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution.

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The alleged seizure was effected on 16.08.2005. The sample was produced before the Court on 17.08.2005. The Junior Superintendent of the Court received the sample. It remained in the custody of the property clerk till 04.10.2005. The sample was forwarded to the laboratory on 04.10.2005. It was delivered in the laboratory through an Excise Guard by name Sri. S.Sreedharan on 06.10.2005. The property clerk of the Court and the Excise Guard who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. The prosecution failed to explain the custody of the sample during the period

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CRL.A NO. 1091 OF 2009

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from 04.10.2005 to 06.10.2005.

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It is also relevant to note that Exhibit P5 forwarding note does not contain the name of the official with whom the sample was forwarded to the laboratory. There is no clarity as to the person who obtained the sample in the court and delivered the same in the Chemical Examiner’s Laboratory. Nonexamination of various officials who handled the sample during the course of its transit from the court to the laboratory is fatal to the prosecution.

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In Sasidharan v. State of Kerala [2007 (1) KLT 720] , this Court had occasion to elucidate on the 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 tamper-proof 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

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CRL.A NO. 1091 OF 2009

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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 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] .

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The prosecution failed to establish that the contraband allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. Therefore, Exhibit P7 Certificate of Chemical Analysis has no evidentiary value.

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The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital

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CRL.A NO. 1091 OF 2009

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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.

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The Criminal Appeal is allowed as above.

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Sd/-

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K. BABU JUDGE

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saap

P.Raman v. State of Kerala

Case brief

What is this about?

What did the court decide?

P.Raman v. State of Kerala

Case brief

What is this about?

What did the court decide?

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