Allowed

Kuppa @ Pushpa v. State of Kerala

Kerala HC22 Mar 2024CRL.A/680/2008

Case brief

AI extract

What is this about?

The High Court acquitted the appellant convicted under the Abkari Act for possession of arrack. The appeal was allowed because the prosecution failed to examine officials handling the sample to prove the chain of custody and establish that the tested substance was the same as the seized one.

What did the court decide?

Accused acquitted and set at liberty with disbursement of any deposited amount.

Kuppa @ Pushpa Vs State of Kerala — Narcotics (NDPS) | 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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FRIDAY, THE 22ND DAY OF MARCH 2024 / 2ND CHAITHRA, 1946
CRL.A NO. 680 OF 2008

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AGAINST THE ORDER/JUDGMENT DATED 05.12.2007 IN SC NO.5 OF 2007 OF
ADDITIONAL DISTRICT COURT (ADHOC), MANJERI

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APPELLANT:

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KUPPA @ PUSHPA
KALLUVETTUKUZHIYIL, OZHOOR AMSOM DESOM, TIRUR,,
MALAPPURAM DISTRICT.
BY ADV SRI.SAJU.S.A

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RESPONDENT:

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

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SRI.G.SUDHEER.P.P

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THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON
22.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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CRL.A NO. 680 OF 2008

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K.BABU, J .

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CRL.A.No.680 of 2008

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Dated this the 22^nd 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 05.12.2007, passed by the Additional Sessions Court, (Ad-hoc-I), Manjeri, in Sessions Case No.05/2007, the accused has preferred this appeal. The appellant/accused was convicted under Section 55(g) of the Abkari Act and sentenced to undergo rigorous 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 28.02.2004, at 07.00 p.m. the appellant was found in possession of 75 litres of wash at Ozhoor Desom in Tirur 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(g) of the Abkari Act before the jurisdictional magistrate. The case was committed to the Sessions Court, from

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CRL.A NO. 680 OF 2008

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where it was made over to the trial Court. On the appearance of the accused, charge was framed against her for the offence punishable under Section 55(g) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, she came to be tried by the trial Court for the aforesaid offence.

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The prosecution examined PWs.1 to 5 and proved Exts.P1 to P9 and MOs.1 to 2.

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After the closure of prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. She pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused, and hence she was called upon to enter on her defence and adduce evidence, if any, she 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 the learned counsel appearing for the appellant/ accused and the learned Public Prosecutor appearing for the respondent.

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The learned counsel for the appellant challenged the

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CRL.A NO. 680 OF 2008

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judgment of conviction and sentence on the ground that the prosecution failed to prove that the arrack allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory.

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The learned counsel for the appellant submitted that the various officials who handled the sample during its transit from the Court to the laboratory were not examined by the prosecution.

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The sample was received in the Court by the Junior 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. V.K. Sooraj. The Junior Superintendent of the Court and the property clerk 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.

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CRL.A NO. 680 OF 2008

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The crux of the offences under the Abkari Act, by its very nature, is the seizure of the contraband. The prosecution in a case of this nature can succeed only if it establishes that the very same sample drawn at the place of occurrence was the sample tested in the Chemical Examiner's laboratory.

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A legal obligation is cast on the prosecution to prove that it was the contraband substance allegedly seized from the possession of the accused eventually reached the Chemical Examiner's laboratory in a tamper-proof condition. The chain of custody of the contraband commencing from the place of occurrence to the stage when the contraband reaches the laboratory is required to be established by 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 Rajasthan v. Daulath Ram (AIR 1980 SC 1314) in Sasidharan (supra) this Court held that where sample changed several hands

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CRL.A NO. 680 OF 2008

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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 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 S. 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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In the instant case, the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's

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CRL.A NO. 680 OF 2008

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laboratory. Therefore, Ext.P9 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

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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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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 accused is acquitted of the offence alleged. She is set at liberty. The amount, if any, deposited by the appellant shall be disbursed to her as per law.

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The appeal is allowed as above.

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Sd/-

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K. BABU JUDGE

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saap

Kuppa @ Pushpa v. State of Kerala

Case brief

What is this about?

What did the court decide?

Kuppa @ Pushpa v. State of Kerala

Case brief

What is this about?

What did the court decide?

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