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2021 Supreme(Online)(KER) 30605
HIGH COURT OF KERALA
K. Babu, J
ANIL KUMAR @ MATHI VIJAYAN – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A/987/2007
The integrity of evidence must be maintained with a clear chain of custody in narcotic cases, crucial for proving guilt beyond a reasonable doubt.
Headnote:
Abkari Act - Possession of contraband - Section 58 - The court emphasized the importance of maintaining the integrity of evidence throughout the chain from seizure to analysis, highlighting the failure of prosecution to prove the chain of custody for the evidence presented.
Fact of the Case:
The accused was found in possession of 4 litres of arrack. After investigation, he was charged under Section 58 of the Abkari Act for illegal possession of liquor. The court had to determine if there was sufficient evidence to uphold the conviction.
Finding of the Court:
The court found that the prosecution failed to establish the continuity and integrity of the sample from the time of seizure to analysis; thus, the evidence presented was insufficient for conviction.
Issues: Whether the evidence presented by the prosecution was sufficient to uphold the conviction of the accused under Section 58 of the Abkari Act.
Ratio Decidendi: The court ruled that the prosecution must establish a clear chain of custody for evidence in drug cases, and any discrepancies in this process can lead to wrongful conviction.
Final Decision: The appeal is allowed; the judgment and sentence are set aside, and the accused is acquitted.
JUDGMENT
Challenge in this appeal is to the judgment dated
16.5.2007, passed by the Additional Sessions Judge for the trial of Abkari Act cases, Neyyattinkara in S.C.No.1411/2001. By the impugned judgment, the appellant/accused has been convicted of the offence punishable under Section 58 of the .
2. The prosecution case is that on 18.6.2000, at 6 pm., the accused was found in possession of 4 litres of arrack in a 5 litre can and a glass tumbler at Chempooru in Keezharoor Village.
3. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 58 of the Abkari Act before the Judicial First Class Magistrate Court III, Neyyattinkara. The case was committed to the Sessions Court, Neyyattinkara from where it was made over to the Additional Sessions Court, Neyyattinkara. On appearance of the accused, charge was framed against him for the offence punishable under Section 58 of the . The accused pleaded not guilty and therefore, he came to be tried by the trial court for the aforesaid offence.
4. The evidence for the prosecution consists of the oral evidence of PWs 1 to 5, Exts.P1 to P8 and MOs1 and 2.
5. After 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 that there is 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 learned trial court, after hearing the arguments addressed from both sides, found that the accused is guilty of the offence under Section 58 of the Abkari Act and he was convicted thereunder. He was sentenced to undergo rigorous imprisonment for a term of one year and to pay a fine of Rs.1,00,000/-.
6. Heard Sri.G.Sudheer, the learned counsel appearing for the appellant and Sri.M.C.Ashi, the learned Public Prosecutor appearing for the respondent.
7. The learned counsel for the appellant contended that the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's laboratory.
8. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.
9. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not.
THE POINT
10. PW4, the Sub Inspector of Police, Vellarada detected the offence. He has given evidence that on 8.6.2000 while the police party led by him was on patrol duty, on getting reliable information that the accused was engaged in the sale of illicit arrack, they proceeded to there. The accused was found in possession of the contraband substance contained in a 5 litre can and a glass tumbler. The accused was arrested by PW4. He seized the contraband substance as per Ext.P1 mahazar. PW1, an independent witness, and PW3, the police official who had accompanied PW4 in the search and seizure, supported the prosecution case. PW2 did not support the prosecution. PW5, the property clerk of the Judicial First Class Magistrate Court III, Neyyattinkara gave evidence that she had drawn the sample from the contraband substance produced before the court.
11. The learned counsel for the accused relied on the following circumstances to contend that the prosecution has not succeeded in establishing that the contraband substance allegedly recovered from the place of occurrence eventually reached the hands of analyst:
a) There is no convincing evidence to show that the contraband substance stated to have been seized from the possession of the accused actually reached the court in a tamper proof condition.
b) No sample was drawn at the scene of occurrence by the detecting officer.
c) The genuineness of the sample taken by PW5, the property clerk, is doubtful.
d) The prosecution f
