Allowed

Sivan v. State of Kerala

Kerala HC21 Mar 2024CRL.A/1667/2011

Case brief

AI extract

What is this about?

Accused convicted under Section 55(i) of the Abkari Act for possessing illicit liquor appealed. The seizure mahazar lacked seal particulars and officials handling the sample in transit were not examined, so the chain of custody could not be verified. The court acquitted the appellant for want of link evidence.

What did the court decide?

Appellant acquitted and set at liberty; amounts deposited under interim orders to be disbursed to him as per law.

Sivan Vs State of Kerala — Criminal Trial and Appeal | Kerala HC (2024)

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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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THURSDAY, THE 21ST DAY OF MARCH 2024 / 1ST CHAITHRA, 1946

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CRL.A NO. 1667 OF 2011

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AGAINST THE ORDER/JUDGMENT DATED 12.08.2011 IN SC NO.96 OF 2007 OF
ADDITIONAL DISTRICT COURT (ADHOC), KALPETTA
APPELLANT:

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SIVAN
THERUVATH VEEDU, KUNNAMANGALAM VAYAL, MEPPADI, WAYANAD
DISTRICT.
BY ADV SRI.A.C.DEVY

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RESPONDENT:

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STATE OF KERALA

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THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM,
KOCHI-31.

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SRI.G.SUDHEER.P.P

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
21.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 1667 OF 2011

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K.BABU, J .

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CRL.A.No.1667 of 2011

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Dated this the 21^st 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 12.08.2011, passed by the Additional Sessions Court, Adhoc-I, Kalpetta, in Sessions Case No.96/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a period of one year and pay a fine of Rs.1 Lakh.

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The prosecution case is that on 01.12.2005, at about 1.10 p.m. the appellant was found in possession of 2.875 litres of Indian made foreign liquor at Meppadi town in Kalpetta 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 55(i) 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, charge was framed against him for the offence punishable under Section 55(i) of the Abkari Act. The accused pleaded not guilty to

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CRL.A NO. 1667 OF 2011

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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 10 and proved Exts.P1 to P14, MOs.1 to 2, MOs. 3 to 4 series, MOs. 5 to 6 and MO.7 series.

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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. A.C.Devy, the learned counsel appearing for

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

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Laboratory.

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CRL.A NO. 1667 OF 2011

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The learned counsel for the appellant relied on the

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following circumstances to substantiate his contentions:-

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i) Exhibit P2 seizure mahazar does not contain the

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nature and description of the seal stated to have been affixed on the bottle containing the sample.

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

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The alleged seizure was effected on 01.12.2005. Ext.P2 is the seizure mahazar prepared by the detecting officer at the scene of occurrence. Ext.P2 does not contain the specimen of the seal used by the detecting officer. He has also not produced the specimen of the seal before the Court at the time of production of properties before the Court and has not given evidence as to the nature of the seal used.

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In Bhaskaran v. State of Kerala (2020 KHC 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 was received in the Court by the Junior

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CRL.A NO. 1667 OF 2011

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Superintendent of the Court, which remained in the custody of the Property Clerk and was delivered in the laboratory by an Excise Guard by name Sri. Suresh Babu. The Junior Superintendent of the Court, the Property Clerk and Sri. Suresh Babu, 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. Non-examination of those officials who handled the sample during the course of its transit from the Court to the laboratory is fatal to the prosecution as prosecution failed to rule out the possibility of the sample being changed or tampered with. 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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The resultant conclusion is that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. Therefore, Ext.P8 Certificate of Chemical Analysis has no evidentiary value.

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In Vijay Pandey v. State of U.P (AIR 2019 SC 3569) the Apex 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

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CRL.A NO. 1667 OF 2011

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tested have to be co-related.

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In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above.

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The upshot of the above discussion is that the 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 interim orders of the Court shall be disbursed to him as per law.

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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

Sivan v. State of Kerala

Case brief

What is this about?

What did the court decide?

Sivan v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

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