Conviction for possession of rum under Sections 55(a) and 55(i) of the Abkari Act was overturned because the seizure mahazar lacked seal details and the sample was drawn by the court property clerk, breaking the evidentiary link between the seized contraband and the chemical analysis.
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE K. BABU
MONDAY, THE 20TH DAY OF MAY 2024 / 30TH VAISAKHA, 1946
CRL.A NO. 277 OF 2008
AGAINST THE JUDGMENT DATED 22.01.2008 IN SC NO.111 OF 2002 OF SPECIAL COURT FOR ABKARI ACT CASES, KOTTARAKKARA
APPELLANT/ACCUSED:
THANKAPPAN, S/O THEVAN, LALU VILASOM VEEDU, COLLEGE WARD, PUNALUR.
RESPONDENT/COMPLAINANT:
STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.
BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 20.05.2024,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Crl.A No.277 of 2008
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K.BABU, J.
Criminal Appeal No.277 of 2008
Dated this the 20th day of May, 2024
JUDGMENT
Aggrieved by the judgment dated 22.01.2008, passed by the Additional Sessions Court (Abkari Cases), Kottarakkara in S.C.No.111/2002, the appellant/accused has preferred this appeal. The appellant was convicted under Sections 55(a) and 55(i) of the Abkari Act and sentenced to undergo simple imprisonment for a term of one year and pay a fine of Rs.1 Lakh.
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Crl.A No.277 of 2008
the accused, charge were framed against him for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, he came to be tried by the Trial Court for the aforesaid offences.
P5 and MOs 1 and 2. Exhibits X1 to X3 were marked as Court Exhibits.
appellant/accused and the learned Public Prosecutor appearing for the respondent.
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Crl.A No.277 of 2008
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:
contain the nature and description of the seal stated to have been affixed on the
bottles containing the contraband.
sample from the contraband produced
before the Court has no sanction of law.
detecting officer had prepared Ext.P1 seizure mahazar. Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottles containing the contraband. There is nothing to show that the specimen of the seal
was produced before the Court at the time of production of the
Crl.A No.277 of 2008
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properties.
Kerala [2021 (6) KLT 416]. In Baburaj this Court held thus:
“35. Drawing the sample and sealing the same are acts within the exclusive province of the Police official or the Excise official concerned. The learned Magistrate undertaking the act of taking the sample from the contraband himself is irreconcilable. The water-tight compartments provided for the investigator and the court in a criminal prosecution cannot, at any rate, be allowed to be traversed or interchanged. It is pertinent to note that the detecting officer, after investigation, is to file the final report before the Magistrate. If the Magistrate himself undertakes the act of taking the sample from the contraband produced before him, the question of independent consideration of final report laid by the investigating officer before the learned Magistrate,
Crl.A No.277 of 2008
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which is cardinal to criminal jurisprudence, would fail. This finding is fortified by the decision of this Court in Smithesh v. State of Kerala [2019 (2) KLT 974], wherein this Court held that the Magistrate has no power or authority to collect samples from the contraband produced before him. In Baby v. State of Kerala [2020 (2) KLT 590], this Court had an occasion to consider whether the Magistrate has the power or authority to direct the investigating officer to draw the sample from the contraband produced before the court for sending to the chemical examiner. This Court held that the learned Magistrate had traversed the jurisdictional limits by issuing orders to take samples from the contraband produced before him for the purpose of sending it to the Chemical Examiner's laboratory.
12. In Baburaj (supra) this Court further held that as the
procedure adopted in drawing sample from the contraband substance by the property clerk has no sanction of law, no evidentiary value can be given to the Certificate of Chemical Analysis prepared based on the sample so drawn. The resultant conclusion is that Ext.P2 Certificate of Chemical Analysis has no evidentiary value.
Crl.A No.277 of 2008
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occurrence eventually reached the Chemical Examiner's
Laboratory, Ext.P2 Certificate of Chemical Analysis has no evidentiary value.
v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala [2007 (1) KHC 275] }.
Crl.A No.277 of 2008
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evidence as discussed above.
The Criminal Appeal is allowed as above.
Sd/K.BABU, JUDGE
KAS
1 issue framed by the court
Did the prosecution establish the chain of custody linking the seized contraband to the sample analysed by the Chemical Examiner's Laboratory?
Colour shows how this judgement treated each authority
Bhaskaran K. v. State of Kerala and anotherRelied on¶10
2020 KHC 5296
Baburaj v. State of KeralaRelied on¶11
2021 (6) KLT 416
Smithesh v. State of KeralaReferred
2019 (2) KLT 974
Baby v. State of KeralaReferred
2020 (2) KLT 590
Vijay Pandey v. State of U.PRelied on¶14
AIR 2019 SC 3569 · Who else cites this
State of Rajasthan v. Daulat RamRelied on¶15
AIR 1980 SC 1314 · Who else cites this
Sasidharan v. State of KeralaRelied on¶15
2007 (1) KHC 275
3 provisions across 2 enactments
Thankappan
State of Kerala
K. Babu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
