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2022 Supreme(Online)(KER) 23815
HIGH COURT OF KERALA
K. Babu, J
PRABHAKARAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2474 2008
The judgment establishes that a case built on evidence from an incompetent officer or flawed sample management is unsustainable.
Headnote:
Abkari - Possession of Arrack - Abkari Act - Section 8(2) - The court highlighted that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory and the incompetence of the detecting officer, leading to an acquittal.
Fact of the Case:
The accused was convicted for possessing 9 liters of arrack for sale, violating the Abkari Act, and sentenced to two years of rigorous imprisonment and a fine. The conviction was challenged on grounds of detection by an incompetent officer and failure to establish a tamper-proof sample.
Finding of the Court:
The court found that the prosecution did not prove the tamper-proof despatch of the sample or the competence of the detecting officer, which were vital aspects affecting the integrity of the case against the accused.
Issues: Whether the detection by an incompetent officer invalidates the prosecution case, and whether the prosecution established the tamper-proof despatch of the sample to the laboratory.
Ratio Decidendi: The court held that evidence regarding the competence of the detecting officer and the integrity of the sample despatch is crucial; failure to prove these elements entitles the accused to benefit of the doubt.
Final Decision: The accused is acquitted of the charges and set at liberty.
JUDGMENT
Aggrieved by the judgment dated 30.09.2008, passed by the Additional Sessions Court (Adhoc-II) Kalpetta, in Sessions Case No.379/2006, 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 term of two years and pay a fine of Rs.1 Lakh.
2. The prosecution case is that on 14.01.2005 at 06.30 p.m., the accused was found in possession of 9 litres of arrack for sale at Nambiarkunnu in violation of the provisions of the Abkari Act .
3. After completing the investigation, final report was submitted against the appellant/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 6 and proved Exts.P1 to P7, and MOs 1 and 2.
5. After the closure of the 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. On the side of the defence DW1 was examined and Ext.D1 was marked. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant for the aforesaid offence.
6. Heard Sri. P. Vijaya Bhanu, the learned Senior 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/accused challenged the judgment of conviction and sentence on the following grounds:
a) The detection was made by an incompetent officer.
b) The prosecution failed to establish the tamper-proof despatch of the sample to the laboratory.
8. The alleged seizure was effected on 14.01.2005 by the Preventive Officer of Excise Enforcement and Anti Narcotic Special Squad, Wayanad (PW1). At the time of seizure and arrest, PW1 prepared Ext.P2 seizure mahazar. He had drawn the sample at the place of occurrence. PW1 failed to narrate the nature and description of the seal stated to have been affixed on the bottle containing the sample in Ext.P2. He has not given evidence as to the nature of the seal used. The specimen of the seal was also not produced before the Court at the time of production of the sample. 9. In Bhaskaran v. State of Kerala (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.
10. The learned counsel for the accused further relied on Kumaran v. State of Kerala [ 2016 (4) KLT 718 ], to contend that the prosecution failed establish the tamper- proof despatch of the sample from the Court to the laboratory. The learned counsel for the accused contended that Ext.P5 the forward note/requisition for sending sample to the laboratory does not contain the name of the person with whom the sample was forwarded to the laboratory. The learned Magistrate who countersigned the same failed to mention the date on which he made his initial. The space meant for mentioning the name of the Excise guard to whom the sample was forwarded to the laboratory is left vacant.
11. While considering a similar fact situation this Court in Kumaran v. State of Kerala [ 2016 (4) KLT 718 ], held thus:
“7. There is yet another reason to grant benefit of doubt to the revision petitioner, which is stated hereunder. Ext.P9 is the copy of the forward
