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2024 Supreme(Online)(KER) 54863
HIGH COURT OF KERALA
K. Babu, J
RAJESH @ SOMAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 1092/2009
ADV SRI.NIREESH MATHEW, ADV PUBLIC PROSECUTOR SRI.SUDHEER P P
The prosecution must establish a tamper-proof chain of custody for seized contraband; failure to do so renders chemical analysis reports inadmissible.
Headnote:(A) Abkari Act - Section 8(2) - Conviction for possession of contraband - The prosecution failed to establish that the seized contraband reached the Chemical Examiner's Laboratory in a tamper-proof condition, leading to the conclusion that the chemical analysis report lacked evidentiary value. (Paras 10, 11, 12, 14, 15)
(B) Evidence Act - Section 114(e) - Presumption of official acts - Courts can only presume that an official act was regularly performed if it is shown to have been performed, and this presumption does not apply where statutory formalities are not followed. (Paras 14, 15)
Facts of the case:
The appellant was convicted under Section 8(2) of the Abkari Act for possessing 11 litres of arrack. The prosecution's evidence was challenged on the grounds of improper handling and lack of verification of the sample.
Findings of Court:
The prosecution failed to prove that the seized sample reached the laboratory without tampering, rendering the chemical analysis report inadmissible.
Issues: The main issues included the failure to establish the chain of custody for the seized contraband and the evidentiary value of the chemical analysis report.
Ratio Decidendi: The court ruled that the prosecution must prove that the sample was handled properly and reached the laboratory without tampering, and failure to do so undermines the conviction.
Result: The appellant is acquitted of the offence alleged.
| Table of Content |
|---|
| 1. possession of 11 litres (Para 2) |
| 2. investigation and final report (Para 3 , 4 , 5 , 6) |
| 3. circumstances to substantiate (Para 7 , 8) |
| 4. seizure mahazar does not contain (Para 9) |
| 5. specimen of the seal (Para 10 , 11 , 12 , 13 , 14 , 15 , 16) |
| 6. conviction and sentence (Para 17) |
JUDGMENT
Aggrieved by the judgment dated 26.05.2009, passed by the Additional District and Sessions Court (Adhoc) Fast Track Court-II, Pathanamthitta, in Sessions Case No.78/2006, the accused has preferred this appeal. The appellant/accused was convicted under Section 8 (2) of the Abkari Act and sentenced to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 27.04.2004, at about 4.30 p.m., the appellant was found in possession of 11 litres of arrack at Iraviperoor 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 framed against him for the offence punishable under Section 8 (2) of the . 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 4 and proved Exts.P1 to P8 and MOs. 1 and 2.
5. 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.
6. Heard Sri.Nireesh Mathew, the learned counsel appearing for the appellant/ accused and Sri.G.Sudheer, the learned Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellant challenged 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 Laboratory.
8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions:-
i) Exhibit P1 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample.
ii) The specimen of the seal was not produced before the Court and forwarded to the Chemical Examiner’s Laboratory for comparison.
Iii) The forwarding note was not produced and marked.
iv) The various officials who handled the sample during the course of its transit from the Court to the laboratory were not examined by the prosecution.
9. The alleged seizure was effected on 27.04.2004. The detecting officer had prepared seizure mahazar at the scene of occurrence which is marked as Ext.P1. Ext.P1 seizure mahazar does not contain the nature of the seal stated to have been used by the detecting officer. The detecting officer has also not given evidence as to the specific nature of the seal used by him. There is nothing to show that the specimen of the seal was forwarded to the Chemical Examiner's Laboratory for comparison.
Forwarding note was not produced and marked.
10. In Bhaskaran K. v. State of Kerala and another ( 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.
11. In Rajamma v. State of Kerala [2014 (1) KLT 506] , this Court held that if the specimen of the seal affixed on the bottle containing
