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2021 Supreme(Online)(KER) 24249
HIGH COURT OF KERALA
K. Babu, J
RAJAPPAN @ VAVA – Appellant
Versus
STATE OF KERALA – Respondent
CRL.A 2089 2007
The prosecution must establish a clear chain of custody and tamper-proof handling of evidence in drug-related offenses to secure a conviction.
Headnote:
Abkari - Conviction - Abkari Act - Section 8(2) - The court found that the prosecution failed to establish the chain of custody and tamper-proof despatch of the seized sample to the laboratory, ultimately leading to the acquittal of the accused.
Fact of the Case:
The accused was found in possession of illicit arrack, leading to his conviction under Section 8(2) of the Abkari Act. He appealed the decision, challenging the evidence pertaining to the proper handling and analysis of the seized substance.
Finding of the Court:
The court concluded that the prosecution did not demonstrate a tamper-proof despatch of the sample for analysis and failed to link the sample to the seized contraband, which was crucial for establishing the case against the accused.
Issues: Whether the conviction and sentence against the accused for possession of an illicit substance were sustainable based on the evidence presented.
Ratio Decidendi: The prosecution's inability to provide evidence of the proper chain of custody and tamper-proof conditions for the analysis of the sample led to a reasonable doubt about the integrity of the evidence.
Final Decision: The accused is acquitted of the charge and is set at liberty.
JUDGMENT
Aggrieved by the judgment dated 22-10-2007, passed by the learned Additional Sessions Judge, Fast Track (Adhoc), Mavelikkara in S.C No.597/2003, the accused has preferred this appeal.
2. The trial court convicted the accused for the offence punishable under section 8(2) of the Abkari Act .
3. The prosecution case is that on 05-10-2000 around 1.30 p.m the accused was found in possession of 1 ½ litres of illicit arrack in a plastic bottle at Mulakuzha in Chengannur.
4. After completion of investigation, final report was submitted against the accused for the offence punishable under Section 8 (2) of the Abkari Act before the Judicial First Class Magistrate Court-II, Chengannur. The case was committed to the Sessions Court, Alappuzha from where it was made over to the Additional Sessions Court Fast Track (Adhoc), Mavelikkara. On 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 levelled against him and therefore, he came to be tried by the trail court for the aforesaid offence.
5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P8 and MO1.
6. 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 trial court, after hearing arguments addressed from both sides, found that the accused is guilty of offence under Section 8 (2) of the Abkari Act and he was convicted thereunder. The accused was sentenced to undergo rigorous imprisonment for a term of 3 ½ years and to pay a fine of Rs.1 Lakh under Section 8 (2) of the .
7. Heard Smt.R.Beena, learned counsel appearing for the appellant/accused and Sri.M.S.Breez, learned Senior Public Prosecutor appearing for the respondent.
8. The learned counsel for the appellant/accused 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.
9. The learned Public Prosecutor, per contra, submitted that the prosecution could well establish the charge against the accused.
10. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused/appellant are sustainable or not.
The Point
11. PW1, the Excise Inspector, Excise Range Office, Chengannur, detected the offence. PW1 gave evidence that on 05-10- 2000 around 1.30 p.m while the Excise team led by him was on patrol duty through Kanjirathumoodu-Karakkadu road, the accused was found in possession of 1 ½ litres of illicit arrack in front of the shop run by one Pavithran. PW1 seized the contraband substance from the possession of the accused and collected 200 ml of arrack from it in a 375 ml bottle as sample. PW1 prepared Ext.P1 seizure mahazar.
12. PW5, the Excise guard who had accompanied PW1 in the search and seizure, supported the prosecution version.
13. PWs 2 and 3, the independent witnesses, did not support the prosecution case.
14. PW4, the Excise Inspector of Chengannur Excise Range conducted investigation and submitted final report.
15. The learned counsel for the appellant/accused submitted that the prosecution failed to establish that the contraband substance allegedly recovered from the possession of the accused was actually subjected to analysis at the Chemical Examiner’s laboratory.
16. The learned counsel for the accused relied on the following circumstances to substantiate his contentions:
(i) PW1, the detecting officer and the other police official who had accompanied him (PW5), have not given evidence as to the specific nature and description of the seal affixed on the bottle containing the sample.
(ii) Exhibit P1 seizure ma
