MANOHARAN v. STATE OF KERALA

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the accused charges were framed against him for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty to the charges and therefore, he came to be tried by the trial Court for the aforesaid offences.

4. The prosecution examined PWs 1 to 7 and proved Exts. P1 to P15, and MOs 1 to 5.

5. After the 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 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. The Trial Court, after hearing the arguments addressed on both sides, found the accused guilty of the offence under Section 8(2) of the Abkari Act and he was convicted thereunder.

6. Heard Sri.C.A.Chacko, the learned 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 challenged the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance

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allegedly seized from the place of occurrence was subjected to chemical analysis. The learned counsel for the appellant relied on

P. Kumaran v. State Of Kerala [2016 (4) KLT 718].

8. The prosecution failed to establish the tamper- proof despatch of sample to the laboratory. In Ext.P9 forwarding note/requisition for sending sample, the name of the official with whom the sample was forwarded has not been entered. In Ext.P9, the forwarding note/requisition for sending sample, the place meant for entering the name of the Excise Guard with whom the sample was forwarded to the laboratory was left vacant. Though the learned Magistrate counter signed Ext.P9, the date on which he made his initials is not available.

9. The prosecution has not given evidence as to the date on which the sample was forwarded to the laboratory. Neither the property clerk of the Court nor the Excise Guard who delivered the sample to the laboratory was examined by the prosecution.

10. While considering a similar fact situation this Court in

P. 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 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 laboratory through the Excise

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Guard Sri.Dinesan on 2.8.2007. It is not discernible as to why the space meant for writing the name of the Excise Guard/Preventive Officer, with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. This would give an indication that even at the time when the learned Magistrate put the initial in the copy of the forwarding note, it was not decided as to with whom the sample had to be sent to the laboratory for analysis. It is also not discernible from Ext. P9 as to when the learned Magistrate put the initial in the forwarding note. The learned Magistrate ought to have written the date on which the initial was made, which is normally expected in a case like this. However, since the date was not written by the learned Magistrate when the initial was made, it is not clear from Ext.P9 as to how many days before the despatch of the sample, the learned Magistrate put the initial in Ext.P9. This becomes relevant, particularly when the space meant for writing the name of the Excise Guard/Preventive Officer with whom the sample was sent, remained vacant in Ext.P9 copy of the forwarding note. In such a situation, it was imperative for the prosecution to examine the thondy clerk of the court or the Excise Guard concerned to prove the tamper-proof despatch of the sample to the laboratory. However, neither the thondy clerk nor the Excise Guard through whom the sample was sent to the laboratory was examined in this case to prove the tamper-proof despatch of the sample to the laboratory and consequently, the tamper-proof despatch of the sample to the laboratory could not be established by the prosecution, which is fatal to the prosecution. For the said reason also, the revision petitioner is entitled to benefit of doubt. The courts below did not consider the above vital aspects while appreciating the evidence and consequently, the conviction and sentence passed by the courts below cannot be sustained."

11. Non-examination of the Property Clerk and the Excise Guard who delivered the sample to the laboratory is fatal to the prosecution as the prosecution failed to rule out the possibility of the sample being changed or tampered with. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram (AIR 1980 SC 1314)]. Therefore, Ext.P15 Certificate of Chemical Analysis has no evidentiary value.

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12. In Vijay Pandey v. State of U.P (AIR 2019 SC 3569)

the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. It is the duty of the prosecution to establish that the sample seized and that tested are the same.

13. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. Therefore, the appellant/accused is entitled to the benefit of doubt.

14. The conviction and sentence recorded by the Trial Court cannot be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty.

The appeal is allowed as above.

Sd/-

K.BABU

JUDGE

VPK