VINOD T.K. v. STATE OF KERALA

However, no evidence was adduced on the side of the appellant/accused. On consideration of the matter, the learned Sessions Judge convicted the appellant for the offence under Section 55 (i) of the Abkari Act and sentenced him to undergo rigorous imprisonment for 6 months and to a fine of Rs. 1,00,000/-. In default of the fine, the appellant/accused was to undergo simple imprisonment for a further period of 2 months.

3. The learned counsel appearing for the appellant submits that the appeal is liable to be allowed on a short ground. It is submitted that this is a case where the Excise Guard through whom the sample was sent for chemical analysis, or the 'thondi' clerk of the Magistrate's court, was not examined by the prosecution. It is submitted that Ext.P6 forwarding note from the Judicial First Class Magistrate Court-I, Sulathan Bathery is dated 08-07-2023. It is submitted that Ext.P9 chemical analysis report will indicate that the sample was received in the laboratory only on 11-07-2013, and the delay has not been explained by the prosecution. It is also pointed out that the name of the Excise Guard through whom the sample was forwarded is not mentioned. The learned counsel for the appellant relies on the unreported judgment of this court dated 16-10-2025 in Crl. R.P. No.2227/2007 (Pushparajan v. The Excise Inspector) to contend that where there is an unexplained delay in producing the sample before the laboratory for chemical analysis, it must be held that the prosecution has failed to establish that the sample which was

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allegedly seized from the appellant/accused was the one produced before the laboratory for chemical analysis.

4. On the other hand, the learned Public Prosecutor submits that unless there is an inordinate delay in the production of the sample before the laboratory, it cannot be said that the prosecution has failed to prove that the sample which was seized from the appellant/accused was not the sample which was produced for chemical analysis. It was submitted that the name of the Excise Guard has been mentioned in the covering letter issued by the Judicial First Class Magistrate Court-I, Sulathan Bathery, as well as in Ext.P1 chemical analysis report.

5. Having heard the learned counsel for the appellant and the learned Public Prosecutor, I am of the opinion that the matter stands covered in favour of the appellant/accused by the judgment of this court in

Pushparajan (supra), which in turn relies on the judgment of this court in

P. Kumaran v. State Of Kerala; 2016 (4) KLT 718 and Krishnadas v. State of Kerala; 2019 KHC 191. The judgment in Pushparajan (supra), this court held as follows:

"8. Yet another contention raised is that in Ext.P5 forwarding note, the name of the guard through whom the sample was taken to the chemical analysis laboratory is not mentioned. It is further contended that a perusal of Ext.P5 would reveal that the sample was despatched to the chemical analysis laboratory on 13.04.1999, but a perusal of Ext.P6 chemical analysis report would reveal that the

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sample reached the laboratory only on 16.04.1999 and there is an unexplained delay of three days. On the basis of the same, the learned counsel for the revision petitioner would contend that in view of the said discrepancies, it is incumbent on the part of the prosecution either to examine the Property Clerk or the Guard through whom the contraband was sent for chemical examination. Having not done that, it cannot be conclusively said that the sample that was taken at the time of seizure is the one that has reached the chemical analysis laboratory in a tamper-proof condition and therefore, the benefit of doubt will go in favour of the accused. This court in a similar circumstance considered the impact of non- mentioning in the forwarding note, the name of the person through whom the sample was sent for analysis in P. Kumaran v. State Of Kerala [2016 (4) KLT 718], paragraph 7 of the order reads as follows:

"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 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

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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."

This court in Krishnadas v. State of Kerala [2019 KHC 191], this

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court has held that the unexplained delay in between sending the sample for chemical examination and the date on which the sample was received by the laboratory concerned is a suspicious aspect, the benefit of which should go to the accused. In view of the above, I am of the opinion that in the abovesaid circumstance, it was incumbent on the part of the prosecution to have examined the thondy clerk and the person through whom the sample was sent for chemical analysis to explain the delay and the safe custody of the contraband till the same was sent from the court for chemical analysis." In the facts of the present case, also, there is nothing on record to indicate that the delay of 3 days in producing the sample for chemical analysis has been explained by the prosecution. As a result, this appeal is allowed. The conviction and sentence imposed on the appellant in S.C No.62/2014 on the file of the Additional Sessions Judge-II, Kalpetta, Wayanad, will stand set aside. Any amount deposited as a condition for suspension of sentence will be refunded to the appellant on proper application.

Sd/-

GOPINATH P.

JUDGE

AMG

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