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2022 Supreme(Online)(KER) 16550
HIGH COURT OF KERALA
P.V. KUNHIKRISHNAN, J
YASODHA – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/732/2008
The prosecution must establish a tamper-proof procedure for handling evidence, including proper sealing and identification of samples, to uphold a conviction.
Headnote:
Abkari - Conviction Appeal - Abkari Act - Section 8(1), Section 8(2) - The appeal was allowed due to the prosecution's failure to establish a tamper-proof procedure in handling the samples, critical for maintaining the integrity of evidence and conviction.
Fact of the Case:
The appellant was convicted under the Abkari Act for possession of illegal arrack, but raised concerns over the handling of evidence, particularly the forwarding sample without proper seal or identification.
Finding of the Court:
The court found that the prosecution did not establish crucial links in the chain of evidence, particularly around the forwarding note and sample handling, leading to reasonable doubt regarding the conviction.
Issues: The primary issue was whether the accused committed the alleged offence, relying on the integrity of the evidence presented.
Ratio Decidendi: The lack of a seal on the forwarding note and failure to identify the person who sent the sample to the analyst were fatal flaws in the prosecution's case, necessitating the benefit of doubt for the accused.
Final Decision: The appeal was allowed and conviction and sentence set aside.
JUDGMENT
The appellant is the accused in SC No.59 of 2003 on the files of the Additional District & Sessions Judge Fast Tracl-I, Thiruvananthapuram. The above case is chargesheeted against the appellant alleging offences punishable under Section 8 (1)
and (2) of the Abkari Act .
2. The prosecution case is that on 27.04.1999 at 12.15 pm, the accused was found in possession of ten litres of arrack in a ten liter volume cannas near the Kadinamkulam Panchayat Office and thus committed the offence.
3. To substantiate the case prosecution examined PW1 to PW5. Exts.P1 to P6 are the exhibits marked from the side of prosecution. After going through the evidence and the documents, the trial court found that the accused committed the offence under Section 8 (1) and (2) of the Abkari Act . The accused was sentenced to undergo simple imprisonment for one year and to pay a fine of Rs.1,00,000/-, in default to undergo simple imprisonment for a period of six months. Aggrieved by the conviction and sentence, the accused filed this appeal.
4. Heard the counsel for the appellant and the learned Public Prosecutor.
5. The counsel for the appellant submitted that the sample is taken from the Court and in the light of the decision of this Court that procedure is not correct. The counsel also submitted that in Ext.P5 forwarding note, there is no seal and it is silent about the person with whom the sample is sent to the analyst. The counsel submitted that in the light of those contentions, the appellant is entitled the benefit of doubt. The Public Prosecutor, on the other hand, submitted that there is oral and documentary evidence to justify the conviction and sentence imposed by the trial court.
6. The point to be decided in this appeal is whether the accused committed the offence alleged by the prosecution. 7. This Court perused Ext.P5 forwarding note.
Admittedly, there is no seal in the forwarding note. If there is no seal in the forwarding note, that is fatal to the prosecution. The importance of the seal in forwarding note is considered by this Court in several decisions. The prosecution has to prove all the links starting from seizure of contraband till it reaches in the hands of the analyst. To prove the same, the seal in the forwarding note is important. InRavi. v. State – S.I. of Police, Meppadi [ 2018(5) KHC 352 ] and Smithesh v. State of Kerala [ 2019(2) KLT 974 ] this point is considered in detail. The relevant portion of the judgment inSmithesh’s case (supra) is extracted hereunder:
“8. This Court has settled that the copy of the forwarding note produced in court by the Detecting officer or the Investigating Officer must be proved in evidence, and it must contain the specimen of the seal affixed on the sample. Ext.P8 forwarding note does not contain the specimen of the seal affixed on the sample. This means that there is nothing to identify the sample collected from the possession of the accused. It is not known from which plastic can, the four samples relating to the chemical report were collected. Thus, on all material aspects, the whole prosecution case is doubtful, and there is no clear and satisfactory material to prove the offence alleged.”
8. Moreover, the forwarding note is silent with regard to the name of the person with whom the sample is sent to the analyst. That is also vital. If that be so, the benefit of doubt will go to the accused. In this case, the thondy clerk or the person who took the sample to the Analyst are not examined. This Court in Kumaran v. State of Kerala [ 2016 (4) KLT 718 ] held as follows:
“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 forwarding note whereby the sample was forwarded to the chemical examiner. The copy of the forwarding note is silent with regard to the name of the person with whom the sample was sent for analysis. Ext.P4 Certificate of chemical analysis would show that the sample was received in the laborat
