IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K. BABU THURSDAY, THE 9TH DAY OF JUNE 2022 / 19TH JYAISHTA, 1944 CRL.A NO. 1558 OF 2007 AGAINST THE JUDGMENT IN SC 828/2004 OF ADDITIONAL DISTRICT COURT (ADHOC), KOZHIKODE APPELLANT/ACCUSED: SASI THIKKODI AMSOM, THRIKKOTTUR DESOM,, KOYILANDY TALUK. BY ADV SRI.SRINATH GIRISH RESPONDENTS/COMPLAINANT & STATE: STATE OF KERALA REP. PUBLIC PROSECUTOR,, HIGH COURT OF KERALA,, ERNAKULAM. OTHER PRESENT: SMT. REKHA.S. (SR.P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 09.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: CRL.A NO. 1558 OF 2007 ..2.. JUDGMENT Aggrieved by the judgment dated 10.08.2007, passed by the Additional Sessions Court [Adhoc -I], Kozhikode in Sessions Case No.828/2004, the 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 two years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 14.12.2002, the accused was found in possession of 5 litres of arrack at Thikkodi in Koyilandi taluk in violation of the provisions of the Abkari Act. 3. 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 the accused charge was CRL.A NO. 1558 OF 2007 ..3.. 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. 4. The prosecution examined PWs. 1 to 5 and proved Exts. P1 to P8 and MO1. 5. After the closure of the evidence on behalf of the prosecution, the 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 to adduce evidence, if any, he may have in support thereof. The trial court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and convicted him thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of two years and pay a fine of Rs.1 Lakh under Section 8(2) of the Abkari Act. CRL.A NO. 1558 OF 2007 ..4.. 6. Heard Sri. Srinath Girish, the learned counsel appearing for the appellant/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenged the judgment of conviction and sentence on the following grounds:- (i) The prosecution has not succeeded in establishing that the contraband substance allegedly seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. (ii) The detecting officer was not an officer empowered under Section 4 of the Abkari Act. 8. The alleged seizure was effected by a Preventive Officer of Kozhikode Excise Intelligence Squad, (PW1) on 14.12.2002. PW1 produced the accused and the contemporaneous documents prepared in the scene of occurrence before the Excise Inspector, CRL.A NO. 1558 OF 2007 ..5.. Koyilandy. Ext. P5 list of properties shows that the properties including the sample reached the Court only on 16.12.2002. The prosecution has not offered any satisfactory explanation for the delay in the production of properties including the sample before the Court. 9. In Ravi v. State of Kerala [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property.” In Ravi's 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 CRL.A NO. 1558 OF 2007 ..6.. production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the court. The unexplained delay in the production of properties would lead to the conclusion that tampering with samples could not be ruled out. 11. The prosecution has not adduced any evidence as to the date on which the sample was forwarded to the laboratory. Ext.P1 certificate of Chemical Analysis shows that the sample was forwarded to the laboratory as per a letter dated 16.12.2002 of the Judicial Magistrate of First Class, Payyoli. The necessary inference is that the sample was forwarded to the laboratory through the excise guard concerned on 16.12.2002 itself. The sample reached the laboratory only on 24.01.2003. The delay in bringing the sample to the laboratory after the same was obtained from the court has not been explained by the prosecution. 12. While dealing with a similar fact situation, this Court in Viswanadhan v. State of Kerala [2016 (3) KHC CRL.A NO. 1558 OF 2007 ..7.. 38] held thus: “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.” 13. In the absence of any satisfactory explanation for the delay in the production of the sample before the laboratory, after the same was forwarded from the Court, it cannot be concluded that, the sample reached the laboratory in a tamper-proof condition. 14. The sample remained in the custody of the property clerk and Shri. Manoj Kumar K.P., an excise guard, who handed over the sample to the laboratory. CRL.A NO. 1558 OF 2007 ..8.. Those officials were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. 15. 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. 16. 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. 17. In Sasidharan v. State of Kerala [2007 (1) KLT 720], this Court had occasion to elucidate on the CRL.A NO. 1558 OF 2007 ..9.. 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. Daulat 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 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 CRL.A NO. 1558 OF 2007 ..10.. 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]. 18. The non-examination of the officials who handled the sample in its transit from the court to the laboratory is fatal to the prosecution. The prosecution failed to establish the tamper-proof handling of the sample. 19. In the absence of any evidence to show that the contraband substance seized from the possession of the accused was subjected to analysis in Chemical Examiner’s Laboratory, Ext.P7 has no evidentiary value. Therefore, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt. 20. The learned counsel for the accused further CRL.A NO. 1558 OF 2007 ..11.. contended that the detection was made by an incompetent officer which would result in the collapse of the entire prosecution case. The learned counsel for the appellant relied on SRO.No.234/1967, a Government Notification issued under Section 4 of the Abkari Act, conferring powers to various officers under the Abkari Act. In the present case the offence was detected by PW1, a Preventive Officer of Excise Intelligence Squad, Kozhikode. The detection was made on 14.12.2002. The Government notification issued as SRO.No.234/1967 had authorised various categories of Excise Officials to discharge the various functions under the Kerala Abkari Act as Abkari Officers. By the said notification only Abkari Officials attached to Excise Range Offices or Circles, or such officers in charge of distilleries, warehouses, wineries etc., were given powers as Abkari Officers, besides the general powers given to the Commissioner of Excise, Assistant Commissioners and Joint Commissioners. Excise Officials of special wings or CRL.A NO. 1558 OF 2007 ..12.. squads like Excise Enforcement and Anti Narcotic Special Squad, or the Excise Intelligence Squad were not given such powers under the 1967 Government Notification. In 2009, the Government of Kerala issued another notification, SRO.No.361/2009 dated 08.05.2009, in supersession of the 1967 notification by which special categories like Excise Officials of the Excise Enforcement and Anti Narcotic Special Squad and Excise Intelligence Squad were given powers of Abkari Officers under the Abkari Act. The resultant conclusion is that as on the date of detection in the present case, the detecting officer who was a Preventive Officer, Excise Intelligence Squad had no such powers. 21. The learned counsel for the accused submitted that since the detecting officer was an incompetent officer, all further proceedings in this case must collapse. 22. The learned counsel for the accused relied on Suresh v. State of Kerala [2017 (2) KHC 891] to substantiate his contentions. While dealing with a similar CRL.A NO. 1558 OF 2007 ..13.. fact situation this Court in Suresh's case (supra) held that a case built on the detection made by an incompetent officer will have to collapse necessarily. On this ground also, the prosecution must fail. 23. The upshot of the above discussion is that the conviction entered by the court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellant/accused is therefore found not guilty of the offence alleged. In the result, (i) the Appeal is allowed ; (ii) The judgment of conviction and sentence passed against the accused is set aside ; (iii) The accused is acquitted of the charge ; (iv) He is set at liberty ; (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to him as per law Sd/- K. BABU, JUDGE kkj