Conviction under Section 8(2) Abkari Act for possession of arrack was challenged for absence of link evidence. The High Court found unexplained delay in producing the sample, no specimen seal produced, an unexplained custody gap, and key handlers not examined, robbing the chemical analysis report of evidentiary value, and acquitted the accused.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
TUESDAY, THE 19TH DAY OF MARCH 2024 / 29TH PHALGUNA, 1945
CRL.A NO. 1765 OF 2010
AGAINST THE JUDGMENT DATED 12.07.2010 IN SC NO.676 OF 2006 OF
ADDITIONAL DISTRICT AND SESSIONS COURT, FAST TRACK NO.I (ADHOC),
PATHANAMTHITTA
APPELLANT/ACCUSED:
BABU, S/O GEEVARGHESE, KINARUVILATHAZHATHIL VEEDU, MUNDAPPALLY, PERINGANADU, ADOOR, PATHANAMTHITTA DISTRICT. BY ADV SRI.A.C.DEVY
RESPONDENT/STATE:
STATE OF KERALA, THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM,KOCHI-31.
BY ADV SRI.G SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 19.03.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.1765 of 2010
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K.BABU, J.
Criminal Appeal No.1765 of 2010
Dated this the 19th day of March, 2024
JUDGMENT
Aggrieved by the judgment dated 12.07.2010, passed by the Additional District and Sessions Court, Fast Track No.I (Adhoc), Pathanamthitta in S.C.No.676/2006, 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 three years and pay a fine of Rs.1 Lakh.
Crl.A No.1765 of 2010
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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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Crl.A No.1765 of 2010
judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.
following circumstances to substantiate his contentions:
properties, including the sample, has not been satisfactorily explained by the prosecution.
Crl.A No.1765 of 2010
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the laboratory were not examined by the
prosecution.
properties, including the sample, were produced before the Court only on 09.07.2001, as is evident from Exhibit P6 property list. The prosecution has not offered any explanation for the delay in the production of the properties, including the sample, before the Court. 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
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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held that if the specimen of the seal affixed on the bottle containing the sample is not produced before the Court and forwarded to the
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Chemical Examiner for verification to ensure that the sample seal
so provided is tallying with the seal affixed on the sample, no evidentiary value can be attached to the Chemical Analysis Report.
“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.”
The sample was delivered in the laboratory through an Excise
Guard by name Unnikrishnan. The property clerk and the Excise Guard, who delivered the sample in the laboratory were not
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examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314].
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.
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seized from the possession of the accused {Vide: State of Rajasthan
v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275] }.
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.
and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result,
the accused is acquitted of the offence alleged. He is set at liberty.
The Criminal Appeal is allowed as above.
Sd/K.BABU, JUDGE
KAS
1 issue framed by the court
Whether the prosecution proved that the seized contraband sample reached the Chemical Examiner's Laboratory without tampering, given delays, missing seal specimen, custody gap and non-examination of h
Colour shows how this judgement treated each authority
Ravi v. State of KeralaRelied on¶9
Ravi v. State of Kerala [2011 (3) KLT 353]
Bhaskaran K. v. State of Kerala and anotherRelied on¶12
Bhaskaran K. v. State of Kerala and another (2020 KHC 5296)
Rajamma v. State of KeralaRelied on¶13
Rajamma v. State of Kerala [2014 (1) KLT 506]
Viswanadhan v. State of KeralaRelied on¶15
Viswanadhan v. State of Kerala [2016 (3) KHC 38]
State of Rajasthan v. Daulat RamRelied on¶16
State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314] · Who else cites this
Vijay Pandey v. State of U.P.Relied on¶18
Vijay Pandey v. State of U.P (AIR 2019 SC 3569) · Who else cites this
Sasidharan v. State of KeralaRelied on¶19
Sasidharan v. State of Kerala [2007 (1) KHC 275]
3 provisions across 2 enactments
BABU, S/O GEEVARGHESE
STATE OF KERALA
K. BABU
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
