IN THE HIGH COURT OF KERALA AT ERNAKULAM 

PRESENT: THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS 

TUESDAY,THE 25TH DAY OF NOVEMBER 2014/4TH AGRAHAYANA, 1936

Crl.Appeal No.673/2014 and Crl.Appeal No.605/2014 

Arising out of Crl.Appeal Nos.565/2013 and 558/2013 on the file of the Additional Sessions Court,Judicial Muvattupuzha, arising out of C.C.No.1420/2012 on the file of the First Class Magistrate's Court-I, Perumbavoor

APPELLANT(S)/RESPONDENT

STATE OF KERALA REPRESENTED BY THE FOREST RANGE OFFICER, KALADY THROUGH PUBLIC PROSECUTOR, HIGH COURT OF KERALA BY ADV. SRI.M.P.MADHAVANKUTTY, SPL. GOVT. PLEADER 

RESPONDENT(S)/APPELLANT

ODIASE AUSTIN GOUBADIA FUJAH STREET, SURALERU, LOGOS REPUBLIC OF NIGERIA (CONVICT NO.1380, CENTRAL PRISON VIYYUR, THRISSUR) BY ADV. SRI.LAVARAJ M.G.

JUDGMENT 

These appeals arise out of the impugned common judgment dated 3.5.2014 of the Additional Sessions Court, Muvattupuzha, in Crl.Appeal No.565/2013 and Crl.Appeal No.558/2013 respectively. The aforementioned appeals on the file of the Sessions Court concerned arose out of the impugned judgment dated 23.10.2013 of the Judicial First Class Magistrate's Court No.1, Perumbavoor, in C.C.No.1420/2012, whereby the accused therein have been convicted of the offence under 

Sec.51(1) of the Wild Life (Protection) Act 

and have been ordered to undergo the sentence of three years imprisonment and a fine of rupees ten thousand each.

2. The crux of the prosecution allegation is as follows:- 

PW-1 (one Sri.C.D.Jose) was working as the Superintendent of Air Intelligence of Cochin International Airport, Nedumbassery, Ernakulam district on 26.1.2012. That the two accused herein came to the domestic terminal of the said airport on 26.1.2012 for boarding the Jet Airways Flight to Chennai and when the trolley bag of A-1 (an Ecuadorian citizen) was put through the scanner, the authorities were suspicious about the contents of his bag and accordingly, the bag was opened and examined. When A-2 (a Nigerian citizen) noted that A-1 is intercepted by the Customs officials, A-2 immediately left the airport and proceeded to Chennai by train. Later A-2 was taken into custody by the Customs officials from Chennai on 27.1.2012 early morning and was brought to the Cochin International Airport, Nedumbassery, Ernakulam, on 28.1.2012 at 8 a.m. A-1's bag was examined as stated above whereupon it was found that it contained one black colour suit case and on opening the same, it was found it contained a black plastic wallet. When the plastic wallet was opened, it was found that there were 16 sachets made out of condoms containing a light cream coloured liquid and one among the 16 sachets was found broken. The Customs officials could not exactly identify the liquid, But PW-1 proceeded as if the contraband was some narcotic drug. Thereupon, PW-1 (Superintendent of the Air Intelligence Customs) contacted various Government departments including the Forest Department of the Government of Kerala in order to exactly ascertain about the nature of the contraband. A-1 was arrested and detained by PW-1 on 26.1.2012 at 6 p.m. Accordingly, the material objects were also detained by PW-1 on that day. On getting information from PW-1, the material objects containing the above said sachet and other objects were inspected by PW-2 (Divisional Forest Officer, Malayattur) after the latter had reached the office of PW-1 in the airport premises on 27.1.2012 for that purpose. 

According to the prosecution, PW-2 (Divisional Forest Officer) opined that the liquid contained in the sachets is snake venom, which is a prohibited article under the provisions of the Wile Life (Protection) Act, 1972. 

As stated above, on the next day, viz., 28.1.2012, 8 a.m, that A-2 was brought over to the Cochin Airport premises, after his arrest and interception at Chennai on 27.1.2012 early morning. PW-9 (Range Officer, Kalady, who is the investigating officer) went to the Cochin Airport on 28.1.2012, as instructed by her superior (PW-2- DFO) and thereupon PW-9 (Range Officer) took possession of both the accused and the material objects and on her reaching back the Range office concerned, had registered a crime as O.R.No.1/2012 of Karakkad Forest Station, Ernakulam district, alleging offence punishable under Sec.51 of the Wild life (Protection) Act, 1972.

3. PW-9 completed the process of preparation of Ext.P-11 mahazar on 28.1.2012 at about 5 p.m. PW-9 produced A-1 and A-2 before the jurisdictional Magistrate on 28.1.2012 at around 11 p.m., along with the Form I report. A-1 and A-2 were thus remanded to custody on 28.1.2012. For further investigation, the custody of A-1 and A-2 were obtained from the court by PW-9 Range Officer and they were questioned. Samples from the 16 condoms including the broken one were taken by PW-9 (Range Officer) with the help of PW- 8 (Veterinary Surgeon). According to PW-8, the samples so taken were sealed. The samples were sent for analysis to the National Institute for Interdisciplinary Science and Technology, Thiruvananthapuram. The institute authorities reported that, to conduct analysis, they require known-samples of (known-reference samples) of snake venom. As per the sanction obtained from the Government of Kerala in terms of Ext.P-13 G.O. dated 31.3.2012, PW-9 and PW-2 obtained reference sample of snake venom from three variety of snakes, viz., cobra, king cobra and viper respectively from the Malampuzha Snake Park and were thus sent to the laboratory for analysis. After conducting analysis, Ext.P-14 report was issued by PW-10 on 19.7.2012 reporting that "the aforementioned results suggest that there is similarity between the seized thondi samples and the authentic snake venom samples provided by Karakkad Forest Station." Later, PW-12 (who is the successor in office of PW-9), in his capacity as the investigating officer, submitted the final report/charge sheet under Form II before the jurisdictional Magistrate's court concerned on 1.11.2012 for offences under Sec. 44 read with Sec.51(1) of the Wild Life (Protection) Act, 1972. The jurisdictional Magistrate took cognizance of the case as Calendar Case, C.C.No.1420 of 2012. The prosecution examined prosecution witnesses, PWs-1 to 12 and also marked prosecution documents as per Exts.P-1 and P-22. Material Objects, MOs 1 to 4 were also marked by the prosecution. The defence did not adduce any evidence. The case was heard and the trial court found the respondents guilty of the offences charged and convicted them and they were directed to undergo sentence of three years' rigorous imprisonment along with fine of rupees ten thousand and in the default thereof, they were ordered to undergo three months simple imprisonment. The lower appellate court, viz., the Sessions Court concerned, set aside the conviction and sentence and acquitted both the accused of the offences as per the aforementioned judgment dated 3.5.2014 in Crl.Appeal No.565/2013 and Crl.Appeal No.558/2013 respectively. It is aggrieved by the setting aside of the conviction and sentence imposed on the accused and the consequent acquittal ordered in favour of them, that the State of Kerala, through the prosecution agency concerned, has filed the instant Crl.Appeal No.673/2014 and Crl.Appeal No.605/2014 respectively pertaining to A-1 and A-2 respectively.

4. The lower appellate court, as per the impugned judgment herein, found that the prosecution erred in causing unexplained delay in keeping the accused persons and materials objects in their custody without production before the jurisdictional Magistrate concerned. The basis for this finding is that Sec. 50(4) of the Wild Life (Protection) Act, 1972, specifically mandates that any person detained, or things seized under the powers of that provision in the Act shall forthwith be taken before a Magistrate to be dealt with according to law, under intimation to the designated Wild Life authorities. In the instant case, A-1 was arrested and detained by PW-1 on 26.1.2012 at 6 p.m. A-2 was arrested by the Customs officials at Chennai Railway Station on 27.1.2012 early morning and was brought over to Cochin Airport on 28.1.2012 at 8 a.m. Whereas both A-1 and A-2 were produced before the jurisdictional Magistrate only on 28.1.2012 at 11 p.m. The seized thondi articles were not produced before the jurisdictional Magistrate even on 28.1.2012 at 11 p.m. when the accused were produced. There is no proper evidence adduced before the trial court as to whether the seized articles have been produced before the court and if produced, as to the exact date on which such thondi articles were produced before the court, etc. The administrative departmental papers contained in the case diary (CD) files alone show that MOs 1 to 4 series are stated to have been produced before the court on 6.2.2012. Further, that PW-9 (Range Officer) erred in not producing the material objects before the court below at the earliest. That there is no evidence to convince the court that the material objects were sealed and kept properly. That the samples sent for analysis are not taken as per the direction of a court. There is is no conclusive evidence on the basis of Ext.P-14 that the samples taken from MOs series were snake venom in as much as the evidence tendered by PW-10 (Scientist) as well as the documentary evidence as per Ext.P-14 certificate issued by PW-10, cannot be said to constitute proof beyond reasonable doubt to conclusively prove before the court that the aforementioned contraband samples were snake venom, as it only shows that it was similar to snake venom. It is on the basis of these broad findings that the lower appellate court, viz., the Sessions Court concerned, has reversed the conviction and sentence imposed on A-1 and A-2 and has acquitted both of them. It is these findings of the acquittal that are challenged before this Court in these Criminal Appeals.

5. Heard the Special Government Pleader (Forest), who is the authorised Public Prosecutor appearing for the prosecution in this case and also Sri.V.Rajendran, learned counsel instructed and assisted by Sri.N.Rajesh, learned counsel appearing for A-1 (respondent in Crl.Appeal No.673/2014) and Sri.M.G.Lavaraj, learned counsel appearing for A-2 (respondent in Crl.Appeal No.605/2014). Both sides elaborately have taken the court through oral and documentary evidences adduced before the court below and have made elaborate arguments and contentions in support of their respective submissions.

6. Before dealing with the issues in detail, it would be relevant to note the appropriate provisions of the Wild Life (Protection) Act, 1972, which have a bearing on the issues raised in these cases. Sec. 44(1)(c) of the Act stipulates that subject to the provisions of Chapter VA of the Act, no person shall, except under, and in accordance with, a licence granted under sub-section (4) derive, collect or prepare or deal in snake venom. Sec. 51(1) of the Act, which provides penalty, stipulates that any person who contravenes any provision of this Act (except Chapter VA and Section 38) or any rule or order made thereunder or who commits a breach of any of the conditions of any licence or permit granted under this Act, shall be guilty of an offence against his Act, and shall, on conviction, be punishable with imprisonment for a term which may extend to three years or with fine which may extend to twenty five thousand rupees or with both. Sec. 55(b) of the Act, which deals with cognizance of offences, stipulates that no court shall take cognizance of any offence against this Act except on the complaint of any person other than, ....... (b) The Chief Wild Life Warden, or any other officer authorised in this behalf by the State Government, subject to such conditions as may be specified by that Government. It is brought to notice by the learned Prosecutor that the Government of Kerala has authorised officers of the Forest Department, not below the rank of Range Officer and Assistant Wild Life Preservation Officer, to file complaints before various courts in the State for the offences committed against this Act as per the notification No.6211/FM3/75 AD dated 1st February, 1975 as SRO No.227/1975, published in Kerala Gazette No.10 dated 11th March, 1975.

7. The Prosecutor would also point out that under Rule 51 of the Kerala Wild Life (Protection) Rules, 1978 (Notification No.GO (P) No.52/78/AD dated 16th February, 1978, published in the Kerala Gazette 24 dated 13th June, 1978 as SRO No.542/78), Government of Kerala has authorised the Chief Wildlife Warden, Wildlife Warden and a Forest Officer of rank not inferior to that of a Ranger, to make complaints under Sec. 55 of the Act.

8. The first issue that may be examined is as to whether the evidence tendered by PW-10 (Scientist), more particularly, on the basis of Ext.P-14 certificate issued by him would constitute proof beyond reasonable doubt to convincingly establish before the court that the contraband samples said to be taken from MO-4 series is snake venom.

9. PW-10 has deposed before the trial court clearly that the test which resulted in Ext.P-14 certificate was on the basis of mass value with the aid of mass spectrometry machine and that mass spectrometry machine obtains mass value of the molecule and if two different molecules having the same mass, then the result will be the same and that mass spectrometry machine cannot differentiate between two different things of same value. It is further stated by PW-10 that as reported by him in conclusion (b) of Ext.P-14, similar mass range of m/z 1730 to 1745 were found in the authentic venom samples (reference venom samples), (which is referred to in Ext.P-15 mahazar). It is also stated by him that he has reported in conclusion (a) of Ext.P-14 that all the seized 20 samples contained mass values between m/z 1730 to 1745 and that one sample viz., sample No.7 is having m/z value 1729 and that all the remaining samples therein are having mass, m/z values 1730 to 1745. But on a reading of Ext.P14 it is seen that conclusion No.b is on the basis of the first table tabulated in page No.2 of Ext.P-14 which reads as follows: S.No. Reference venom MS(m/z) result sample Appearance Physical state A Cobra Brown Liquid 1735 B King Cobra Brown Liquid 1742 C Viper Brown Liquid 1734 From a reading of the above said table, it is seen that the specific data entered therein by PW-10 is that the reference venom samples for cobra, viz., the reference sample A, is having a single and particular m/z result viz., 1735 m/z and the reference venom sample for king cobra, viz. reference sample B, is having yet another single and particular MS result viz., m/z 1742 and the last among the third reference venom sample, viz., reference sample No.C for viper is also having yet another single and particular MS result viz. m/z 1734. Apparently, there appears to be a contradiction in the deposition tendered by PW-10 that in conclusion (b) he has reported that similar mass value of m/z 1730 to 1745 have been found in the authentic venom samples of the aforementioned three samples from three snakes respectively stated above. When the detailed results shows that each of the three respective reference sample have only a single and particular MS value and thus three reference samples are having m/z results of 1735, 1742 and 1734 respectively, it is not known as to how PW-10 would state that the aforementioned three reference samples are having mass range within the range of m/z 1730 to 1745, which is within the variable band width of about 15 distinct m/z value. So also, it is to be noted that from a mere reading of Ext.P-14 it is discernible that conclusion (a) states that all the seized thondi samples contained mass values between m/z 1730 and 1745. The statement in conclusion (a) would have been only on the basis of the second tabular data given on page 2 of Ext.P-14, which reads as hereunder; 

S.No. Seized sample Appearance Physical state MS result (m/z) Comments 1 Sample 1 Brown Liquid 1736 Samples 2 Sample 2 Brown Liquid 1734 withor eithermatch A or B C of 3 Sample 3 Brown Liquid 1736 authentic 4 Sample 4 Brown Liquid 1731 venom samples 5 Sample 5 Brown Liquid 1738 6 Sample 6 Brown Liquid 1734 7 Sample 7 Brown Liquid 1729 8 Sample 8 Brown Liquid 1745 9 Sample 9 Brown Liquid 1735 10 Sample 10 Brown Liquid 1733 11 Sample 11 Brown Liquid 1735 12 Sample 12 Brown Liquid 1732 13 Sample 13 Brown Liquid 1737 14 Sample 14 Brown Liquid 1735 15 Sample 15 Brown Liquid 1743 16 Sample 16 Brown Liquid 1734 

The aforementioned second tabular data on page 2 of Ext.P-14 shows that the seized samples are having the following m/z units viz., 1729, 1732, 1733, 1734, 1735, 1736, 1737, 1738, 1743 and 1745 and thus it can be seen that only ten distinct m/z values are attributable to the 16 seized samples shown in the second table on page 2 of Ext.P-14. But it is not known as to how it is deposed by PW-10 that the aforementioned seized samples are also between the m/z values ranging from 1730 to 1745. May be what is meant by the aforementioned statements of PW-10 is that the aforementioned three reference samples, that of samples A, B and C shown in that first table of Ext.P-14, which are having mass values 1735, 1742 and 1734 and that the aforementioned ten distinct MS values of the 16 seized samples shown in the second table thereof are within the range 1729 to 1745 and therefore a generalised statement would have been made that the figures given in the first table and the second table come within an overall range of 1730 to 1745. But it was the solemn duty of the prosecution to establish and convince the court as to the details of these aspects, because the major focus has brought out in the cross examination of the evidence of PW-10 has brought that mass spectrometry machine is on the basis of the mass values of the molecules and that for two different molecules are having the same mass, then the result will be the same, etc. The tables also show that a single and particular MS value is attributable to each of the specific reference samples or seized samples, as the case may be. It is the duty of the prosecution while adducing scientific evidence to convince the court as to the details of the aforementioned aspects and also to convince the court that there is no contradiction in this regard and these are matters which are explainable on the basis of the scientific method concerned, etc. The court after all, cannot be presumed to have even the elementary knowledge about the sophisticated scientific methodology of conducting mass spectrometry analysis, which is an advanced scientific method in the disciplines like chemistry, physics etc. Therefore, it was the bounden duty of the prosecution, through the witness, who has adduced scientific evidence to explain and convince the court that there are not even any apparent contradiction in the manner as suggested above so that the court is able to reach the easy conclusion that the evidence on the basis adduced by PW-10 (scientist) and on the basis of Ext.P-14 certificate is cogent, convincing and clinching scientific evidence to establish the point sought to be canvassed by the prosecution. It is stated in page No.6 of the deposition of PW-10 that there were 20 seized samples, whereas the case of the prosecution as made out from page No.2 of Ext.P-14 certificate is that there are only 16 samples. Probably this was a mistake, that was stated by PW-10 by oversight. But this has not been explained in re-examination. Even the aforementioned apparent contradiction that a court might have to confront based on the entries in the aforementioned two tables vis-a-vis the conclusions (a) and (b), has not been sought to be in any manner explained properly through re-examination of PW-10, after his cross examination. It is also seen stated in the last column for "comments" in the 2nd table on page 2 of Ext.P-14 that the samples match with either A or B or C of authentic samples. But a cursory reading of the said 2nd table clearly show that none of the 16 samples have a m/z value corresponding to m/z value of 1742 for reference sample C (king cobra) given in the 1st table. Moreover, only Sl. Nos.(2), (6) & (16) correspond to m/z value for C reference sample (1734) and only S.l.Nos.(9), (11) & (14) correspond to m/z value for reference sample A (1735) and so only 6 samples correspond either with C or A. Further, the details to reach at the above comments in the 2nd table are not given in the evidence of PW-10 and so the said certification made in the "comments" portion appears to be imprecise and inconsistent, in the absence of proper explanation.

10. In Conclusion No. (C) of Ext.P14, PW-10 has stated that appearance and physical state of all the seized thondy sample are identical and resemble with that authentic venom sample. It is also stated by PW-10 in his chief-examination that based on his initial analysis, on appearance and compared again with the three known reference venom sample sent for analysis, they appeared to be similar to the authenticated samples. As stated earlier, the main focus of the evidence given by PW-10 is that he has done the analysis solely with the aid of Mass Spectometry Machine and it has been clearly explained by him in the evidence that the Mass Spectrometry Machine obtained mass value of the molecule and that if two different molecule having the same mass, then the result will be the same etc. and that Mass Spectrometry Machine cannot differentiate between two different things of the same value. PW-10 has also clearly stated before the court below that his scientific discipline is in Chemistry and that he has taken his Masters Degree, M.Phil Degree, Doctorate Degree and Post- Doctoral experience in that discipline. It is not in any manner explained why PW-10 in his evidence given before the court below, as to the basis on which he has given an authoritative scientific opinion that the appearance and physical state of seized thondy samples are identical with that of the reference authentic venom samples. When, admittedly, the specific version of PW-10 is that he has done only the Mass Spectrometry analysis, which cannot differentiate between two different things of the same mass value, it is not really discernible to the Court as to the method adopted by PW-10 to state that the appearance and physical state of the seized authentic samples are identical and resemble with that of the authentic reference sample. May be, those statements are only on the basis of a cursory examination of the seized thondy/contraband samples and the reference venom samples, by examination with the help of the naked eye. Or may be this opinion is not only on the basis of mere examination with the help of a naked eye, but some other scientific methods are also adopted in this process. But the Court is absolutely kept in the dark as to whether PW-10 has adopted only the former method of mere examination with the help of the naked eye or he has done not only that but also has done a scientific testing for that purpose. If the latter has been done, it has not been even explained anywhere either in Ext.P14 certificate or in the evidence tendered by PW-10 before the court below regarding that aspect. When this specific and forthright evidence given by PW-10 is that he is a Scientist in the discipline of Chemistry and that he has only done the analysis of the samples with the aid of the Mass Spectrometry Machine, a Court which is not in any manner exposed to the nuances and subtelities of advanced scientific methodologies which is to be adopted in a case of this nature as to whether the above said opinion has been solely on the basis of the former method of naked eye examination or on the latter method of some other scientific method. In the absence of any evidence given by PW-10 that the latter method has also been adopted, the Court is kept in the dark is to infer that only the former method alone has been adopted. If the former method alone has been adopted, it only amounts to an opinion based on an examination of the samples with the help of the naked eye and this can only be understood by the Court as a method normally adopted by any layman. At any rate, based on the present evidence, no scientific credence can be given to the opinion in Conclusion (C) of Ext. P14 that the appearance and physical state of all the thondy samples are identical with that of the authentic reference venom samples. The above said aspect now stated by this Court, will equally apply not only to the opinion made about the appearance of the samples but also to the comment made in the Conclusion (C) about physical state of the samples. This is because PW-10 is a Scientist in the discipline of Chemistry and the only method adopted by him is Mass Spectrometry Analysis and it has not been in any way cogently explained either in Ext.P14 certificate or in the evidence of PW-10 as to the basis on which it can be authoritatively stated about the physical state of all the thondy samples.

11. It is clearly admitted by PW-10 in the cross-examination done at the instance of A1 that apart from the Mass Spectrometry Analysis, there may be other methods of analysis for identification of the samples in question. It is further admitted by PW-10 in his cross-examination done at the instance of A2 that one cannot conclusively say that by NMR (Nuclear Magnetic Resonance) method alone, it is possible to accurately find out the structure of the molecule and that Mass Spectrometry is also required for conclusively telling the structure of the molecule. But it is further admitted by P.W10 therein that Mass Spectrometry cannot find the structure of the molecule and that Chrometography can find the contents of a material (page 9 of PW-10's deposition), provided the authentic samples are provided. But it is to be noted that nowhere in Ext.P14 or in the evidence tendered by P.W-10 has he stated that Chrometography method has actually been done in the instant case. On one hand, PW-10 would suggest that a mass spectrometry may be superior method in comparison of the NMR (Nuclear Magnetic Resonance) method for finding the structure of the molecule. But on the other hand, PW-10 would also say that Mass Spectrometry cannot find the structure of the molecule and that Chrometography can find the contents of the materials provided authentic samples are provided. Further it is stated by PW- 10 therein that Chrometography can find the contents of a material provided authentic samples are provided. These sophisticated aspects in the advanced field of identification of molecular structure are in no way familiar or even understandable to a court and therefore it was the bounden duty of the prosecution through its scientific expert witness to lead evidence in clear understandable terms to the court as to the efficacy of the scientific methods adopted by PW-10 in reaching his conclusions and to convince that it is one of the best and safe method to come to a conclusion that the seized contraband sample is snake venom etc. When PW-10 clearly says that there may be other methods for resolving a problem like in the instant case and when PW-10 himself placed before the court below that Mass Spectrometry, which was adopted by him in the instant case, cannot find the structure of the molecule and that Chrometography can find the contents of a material etc. and it is not stated that Chrometography test has in fact been done in the instant case, it is not known as to on what scientific basis, the court can safely come to the conclusion about the identification of a sample in a case like this.

12. PW-10 further states towards the end of page 9 of his cross-examination that snake venom contains proteins, enzymes and that if artificial combination of proteins and enzymes are compared with authentic snake venom, then the Mass Spectrometry will show the same result. This part of the evidence tendered by PW-10 has been relied on by the accused to contend and establish about the inefficacy of the test method of Mass Spectrometry done by PW-10 in the instant case and that Court cannot safely rely on the conclusions in Ext.P14, because the Mass Spectrometry analysis cannot differentiate between two different things of the mass value as stated by PW-10 and that if artificial combination of proteins and enzymes are compared with authentic snake venom, then the Mass Spectrometry will show the same result. To get over this aspect and to rely on the evidence of PW-10 on the basis of Ext.P14, the trial court in paragraph 27 of the judgment dated 23.10.2013 has held as follows: 

"Learned counsel for the accused further pointed out that the method of analysis followed PW-10 is not a conclusive and it was based on mere speculation. Form Mass Spectrometric Machine one can obtain the mass value of the molecules. If two different molecules having same mass the result will be the same. In the instantthe and casesuspected PW-10 hassamples the known authenticated samples analysedthrough the mass spectrometric machine. Since the mass value of the molecules are one and the same he came to a conclusion that both articles are same on a comparative analysis. Learned counsel for the accused pointed out that the mass spectrometric machine cannot differentiate between two different things of same mass value. Therefore the possibility of error is there in the analysis through mass spectrometric machine. The above argument of the learned counsel for the accused is wholly unsustainable. The possibility of similarity of molecule of one element with another is too remote Snake venom is a complex combination of proteins and enzymes. It is not possible to create another Moreover, it cannot be inferred thatsame artificial material having PW-1molecular the forest structure. or any of officials have artificially created another material to match with known venom sample. Therefore the argument contrary advanced by the learned counsel for the accused is wholly unsustainable". (emphasis supplied) 

13. It is to be noted that these advanced and complex aspects in a scientific discipline are not easily discernible to a court of law. Even if, the Judge concerned, in a particular case, is well- versed and exposed to such scientific development through his academic exposure etc., the evidence that is tendered before a court of law should be one which is clear and cogently understandable in simple terms to any Judge so that any court can decide with clarity and precision as to whether the scientific evidence tendered by the prosecution can be safely relied on for establishing some crucial aspect of the evidentiary matter of a case and if the aspect is one involving criminal culpability, such evidence should be one which amounts to proof beyond reasonable doubt. It could be that whatever is observed herein above by the learned Magistrate is correct. It could equally be that those aspects are not fully correct or are entirely wrong. It may be that the very aspect of creating an artificial combination of proteins and enzymes as referred to in the cross-examination of PW-10 is a purely hypothetical situation, while assessing the above aspects from the point of view of a scientific expert. But it is not known to the court as to whether it is purely a hypothetical aspect or whether the aspects admitted in the evidence by none other than the prosecution witness PW-10, is based purely on a hypothetical aspect or is one which is based on practical scenario. These matters are not within the realm of the knowledge and cognizance of a court of law, while dealing with highly sophisticated and advanced aspects in Science. It is the bounden duty of the prosecution to convincingly point out in their evidence before the court as to whether those aspects that are pointed out in the query during the cross- examination of PW-10 are purely based on hypothetical situation or whether they have any bearing on any practical scenario. PW-10 has not in any manner explained in his evidence while dealing with these aspects that the situation of having artificial combination of proteins and enzymes which are similar or identical to the proteins and enzymes contents of snake venom, is purely hypothetical aspect. If that had been so, PW-10 should have cogently and precisely appraised in his evidence at that stage of the cross-examination that these aspects are based on hypothetical situations and therefore not really relevant or germane in the context of the live situation of assessing scientific evidence given in a case like in the instant one. PW-10 appears to be a young person as he is only at the age of 33, at the time of examination and he has taken his qualifications, Masters Degree in Chemistry, M.Phil., Ph.d. and post-graduate and it may not be far off the mark to infer that he would have got only around three years of actual experience as a Scientist after acquisition of all the aforementioned various qualifications. So it could be that PW-10 was not very experienced at least in dealing with the situations of giving any evidence before a court of law. Whether he has experience in giving evidence before a court of law or not, it was the bounden duty of the prosecution to elicit further clear aspects from PW-10 by re-examining him after the above said cross examination, so as to apprise the Court as to whether the aforementioned aspects are purely based on hypothetical situation or as to whether it has any bearing on such practical scenario. The prosecution has not made any feeble attempt in that direction. The prosecution has not made any attempt to cite any other scientific expert to deal with such a situation so as to cogently and clearly apprise the Court about those aspects and to convince the Court that the test result as in Ext.P14 and the scientific method adopted therein etc. can safely be relied on by the court so as to prove beyond reasonable doubt that the seized contraband sample is snake venom. As the prosecution has not made any attempt in this regard , either for re-examining PW-10 or examining any other scientific expert, it was not within the province of the learned Magistrate to make any observation as quoted in paragraph 28 of the judgment of the Magistrate in this case. On the other hand, the lower appellate court viz., the sessions court has clearly held in paragraph 14 of the impugned judgment dated 3.5.2014 as follows: 

"The next question to be considered is whether the prosecution has succeeded in recovered from the possession of contraband proving that the first accusedarticles allegedly is original snake venom. As judgment, theI evidence of PW-10 Scientist of National Institute of discussed in the preceding paragraphs of this Interdisciplinary Science corroborated with Ext.P14 report and Technology,reveal Thiruvananthapuram would that there are similarities between the seized thondy samples and the authentic sample provided by the forest officials. PW-10 cannot conclusively say that M.O.4 series are original snake venom. PW-10 in cross-examination has admitted that snake venom contained proteins and and enzymes are compared with authentic snake venom enzymes and that if artificial combination ofthe proteins mass spectrometry will show the same result. This would clearly prove that PW-10 is unable to say whether the samples provided by the investigating officer in this case is original snake venom or not. The evidence of PW-10 would reveal that artificial combination of proteins and enzymes and the original snake venom have same mass spectrometric result. In order to attract the penal provision of Section accused persons dealt withthetrophy and animal articles without 51 of the Act prosecution must prove that the licence and that they collect or prepare or deal in snake venom as described in Section 44(1)(c) of the Wild Life (Protection) Act. Apart from the interested testimony of P.Ws. 1, 2 and 9 there is absolutely no reliable evidence to prove that M.O.4 series articles recovered from the luggageit of the 1st accused on 26.1.12 is original snake venom. Hence is incorrect to say that the prosecution has succeeded in proving that the accused persons herein were found in possession of snake venom in contravention of the provisions of Section 44(1)(c) of the Wild Life (Protection) Act................".

14. PW-10 in cross-examination has admitted that snake venom contain proteins and enzymes and that if artificial combination of proteins and enzymes are compared with authentic snake venom, then, the Mass Spectrometry will show the same result. This would clearly show that PW-10 is unable to say whether samples provided by the investigating officer in this case is originally snake venom or not. The evidence of PW-10 would reveal that artificial combination of proteins and enzymes and the original snake venom have same spectrometry result. 

In order to attract the penal provisions of section 51 of the Act, the prosecution must prove that the accused person has dealt with in snake venom as prescribed in Section 44(1)(c) of the Wild Life (Protection) Act. 

In view of the aspects stated hereinabove in this judgment, this Court has no hesitation to hold that the aforementioned findings of the lower appellate court (Sessions Court concerned) in paragraph 14 of the impugned judgment, is the one that commends acceptance and are legally tenable and sustainable in the facts and circumstances of this case.

15. Further it is to be noted that the ultimate certification and conclusion made by PW-10 in Ext.P14 certificate is as follows: 

"This is to intimate you that we have carried out analysis of 16 (thondy) samples in the packet bearing No.T. 96/12 OR 1/2012 forwarded through A.K. Sasikumaran Nair, Deputy Ranger, Kalady forest station on 18.6.12 and compared against authentic venom samples of Kind Cobra, Cobra and Viper that we received on 12.6.12 from Karakkad F.S. The analysis was conducted using Shimadzu AXIMA-CFR plus MALDI-TOF MS at our Mass Spectrometry facility, and I am enclosing the analysis report. The results suggest that there is a similarity between the seized thondy samples and the authentic venom samples provided by Karakkad F.S." 

In the ultimate conclusion part of Ext.P14, it is stated as follows: 

"The aforementioned result suggest that there is similarity between the seized thondy articles and the authentic venom samples as provided by Karakkad F.S." 

(Emphasis supplied) 

16. PW-10 has only certified and concluded in Ext.P14 that there is similarity between seized thondy samples and the authentic samples provided to him and based on the scientific methodology of Mass Spectrometry analysis done by him. A certification or conclusion by a scientist like PW-10 by stating that there is similarity between the seized thondy samples and authentic venom samples may not be taken as proof beyond reasonable doubt to the court to safely conclude on the basis of the prosecution evidence that seized thondy samples is snake venom. This finding of this Court is not merely on the semantics or merely of the one based on the play of words employed in the aforementioned sentence of PW-10. This finding of this Court is based on an overall appreciation of the quality of the scientific evidence let in through PW-10 and through his oral evidence and on the basis of documentary evidence as per Ext.P14, as discussed elaborately hereinabove. The details in this regard has been amplified in the earlier paragraphs of this judgment. Moreover, it was the bounden duty of the prosecution to convince the court that the method adopted was one of the safe and superior or equally good methods compared to any other scientific method available in the earlier paragraph of this judgment, that may be available and that based on the present prescribed scientific protocol in relation to the methodology or test analysis actually adopted, the methodology is generally foolproof and equally good or superior as the other alternative leading methods and that the actual test details also would point conclusively to arrive at the conclusions certified therein. When PW-10 has only certified in Ext.P10 that he has only stated in Ext.P10 that seized thondy samples is similar to the authentic reference venom sample, it cannot be held to constitute proof beyond reasonable doubt to arrive at the criminal culpability of the accused in a case like this.

17. In view of the various aspects stated herein above, this Court is therefore constrained to hold that the evidence based on Ext.P14 or on the basis of oral evidence adduced through PW-10, would not amount to proof beyond reasonable doubt so as to hold that the accused herein are guilty of the criminal offence under Section 50 of the Wild Life (Protection) Act.

18. Now it would be pertinent to examine the issues as to whether the sampling process in respect of the seized contraband articles has been effected in a proper and fool-proof manner so as to enable the court to safely rely on the same for deciding on the criminal culpability of the accused. 

The further issue is as to whether there has been unexplained long delay in the production of seized thondy articles before the court is also to be examined. 

Unless the prosecution can convincingly establish before the court that the sampling process has been properly done in compliance with procedural safeguards and that there has been no unexplained delay in the production of seized thondy articles before court, the Court cannot safely rely on the prosecution evidence to hold that the accused are criminally culpable.

19. On an examination of the evidence tendered before the trial court, the following aspects are clear: PW-1 (Superintendent of Air Customs) has deposed that he had seized the thondy articles in the 16 condoms(one of which was broken) on 26.1.2012 and that on his inspection, he thought that it could be some narcotic drug. More crucially, he has clearly deposed before the trial court that all these 16 sachets containing light cream coloured liquid weighing 570 Grams was then sealed and kept by him in a green cloth bag and that it was sealed with Customs seal No.16.

20. It is further deposed by PW-1 that thereafter he had informed the authorities of various Government departments about this incident and that thereupon PW-2 (Divisional Forest Officer, Malayattoor) had come to the office of PW-1 at Cochin Airport premises on the next day, viz., 27.1.2012. It is the further case that PW-1 had shown the seized thondy articles to PW-2 and the latter was of the opinion that the seized thondy articles are snake venom etc. As PW-1 has clearly deposed that he had placed the entire 16 condoms of the seized thondy articles inside a green cover and closed it and sealed it with customs seal No.16 on 26.1.2012, it is crystal clear that on the next day, viz., on 27.1.2012, P.W2 (D.F.O.) could have seen the seized thondy articles only by opening the closed and sealed green bag which contained seized thondy articles. It is obviously that the seal has been broken open on 27.1.2012 to enable PW-2 to see the seized articles and come to a tentative conclusion that it could be snake venom. Nowhere it is stated by PW-1 or 2 or any other prosecution witnesses that after PW-2 had thus seen the seized articles, the said articles were placed back inside the same bag or any other bag and such bag was closed and sealed again. There is no oral or documentary evidence adduced before the court below, through any of the prosecution witnesses either oral or documentary evidence in this regard, even remotely to suggest that the seized thondy articles which were taken out by the opening and un-sealing of the closed and sealed bag on 27.1.2012 were again placed inside the bag and that such bag was thereafter then closed and sealed. It is the further case of the prosecution as per the evidence of PW-9 (Range Officer) that she had come to the office of PW-1 in the Cochin Airport premises on 28.1.2012 and that she had seen the contraband articles. As there is no evidence whatsoever that the seized thondy articles which were examined by PW-2 on the previous day (27.1.12) after breaking open its cover and seal, was again thereafter placed in the cover and after sealing etc., it can only be inferred that PW-9 has also seen the seized thondy samples in an open and unsealed condition on 28.1.2012. There is no evidence that PW-9 has also seen the thondy articles in a sealed and covered condition on 28.1.2012. Moreover, it is the case of PW-9 that she received the seized thondy articles. PW-9 has further deposed that she received the thondy articles as well as the two accused from PW-1 as evident from Ext.P11 mahazar prepared by her on 28.1.2012 at the Cochin Airport premises.

21. Moreover PW-9 has also clearly deposed in cross- examination at page 9 of the deposition that she had seen the seized thondy articles (liquid) and had identified the colour of the said liquid as yellow. Therefore, it is the categorical version of PW- 9 that she has seen the seized thondy aricles in an unsealed and opened condition on 28.1.2012 when she had again come to the office of PW-1 after 2 p.m.

22. It is thus clinchingly proved that the seized thondy articles were in an open and unsealed condition on 28.1.12 when PW-9 taken the same into custody from PW-1 as recorded in Ext.P11 mahazar. Moreover though Ext.P11 mahazar gives a detailed and vivid description of various aspects of the matter, but has not stated anywhere that the seized thondy articles were kept by PW-9 in a sealed and closed condition on 28.1.12, before the same was taken into custody by her from PW-1.

23. Though the seized thondy articles were taken into custody by PW-9 pursuant to Ext.P11 mahazar on 28.1.2012 between 2 p.m. and 5 p.m., there is no evidence whatsoever as to whether the seized thondy articles either in the oral evidence of PW-9 or in Ext.P11 mahazar that seized thondy articles were actually sealed before taking it into custody by PW-9. It has not come out anywhere either in the oral evidence of PW-9 or in Ext.P11 mahazar that seized thondy articles actually taken into custody by PW- 9 on 28.1.2012 after 2 p.m. were sealed by her and put in a covered condition.

24. No evidence has been forthcoming either through the oral evidence or documentary evidence tendered by any of the prosecution witnesses as to prove that the above said thondy articles (M.O.4 series) were produced before the jurisdictional court concerned and if so, when ? 

25. On the other hand, it is the case of PW-9 that after the preparation of Ext.P11 mahazar, the seized thondy articles were taken to the forest office concerned in the case. Since it was the bounden duty of the prosecution to adduce evidence before the trial court to conclusively prove as to the exact date on which M.O.4 series were produced before the court for the first time. The prosecution, however, would rely on administrative departmental papers contained in the C.D. File (case diary) in order to state that the seized thondy articles were produced before the court after the sampling process. In this regard, it is to be noted that as per the version of PW-9, she has taken the samples from the seized thondy articles on 1.2.2012 with the assistance of PW-8 ( Forensic Surgeon) in order to send such samples for testing in the laboratory concerned. There is no evidence to even suggest that the seized thondy articles were in a covered and sealed condition at the time when it was used for taking samples on 1.2.2012.

26. The departmental papers contained in the C.D.file of the forest officials has not been let in as evidence before the trial court, which is the judicial forum to adjudicate on the criminal culpability or otherwise of the accused. Therefore, it is not proper to rely on any such administrative departmental papers as evident in judicial proceedings. However, taking a lenient view, the lower appellate court in this case has held that the seized thondy articles (M.O.4 series) were sent to the Court on 6.2.2012. Even if this is accepted in the course of the judicial proceedings, there is long delay in the production of the seized thondy articles before the court only on 6.2.2012 when the articles were initially seized as early as on 26.1.2012. In this regard, the provisions of Section 50(4) the Kerala Wild Life (Protection) Act mandate that any person detained or things seized under the enabling powers of that provisions in the Act shall forthwith be taken before a Magistrate to be dealt with according to law under intimation to the designated authorities mentioned therein. The legal implications of this issue will be dealt with later.

27. It is clearly stated in Ext.P1 mahazar dated 26.1.2012 prepared by PW-1 that the seized thondy articles in the 16 condoms were having light yellow (liquid) samples. It is also stated in Ext.P11 mahazar dated 28.1.2012 prepared by PW-9 that the said seized thondy liquid samples were having light cream colour. The reference snake venom samples were collected from the Malampuzha Snake Park pursuant to Ext.P13 G.O. Ext.P15 is a mahazar based on which those reference samples were taken from Malampuzha Snake Park containing the three reference samples of Cobra, King Cobra, Viper respectively. In Ext.P15 mahazar dated 16.4.2012 it is clearly stated that the colour of reference sample taken from Cobra was having a turbid yellow colour and that the reference venom sample taken from King Cobra was having golden yellow colour and that the reference venom sample taken from Viper was having whitish yellow (white mixed yellow). Whereas it is categorically stated in page 2 of Ext.P14 certificate dated 19.7.12 issued by PW-10 from the National Institute of Inter-Disciplinary Science and Technology, Thiruvananthapuram that the colour of all the 16 samples pertaining to the M.O.4 series are having brown colour only. It is also stated in page 2 of Ext.P14 that the reference venom samples of Cobra, King Cobra and Viper taken from Malampuzha Snake Park are having the same colour viz. brown. When the specific case of the prosecution even as made out in the version projected by the evidence of Ext.P10 is that there is importance even for appearance of venom seized by him assessed on the basis of colour, it is not known as to how both the reference samples as well as the samples of the seized contraband have undergone such drastic change of colour, at the time of testing process undertaken as per Ext.P14. When the specific case of the prosecution as evident from Ext.P1, P11 and P15 mahazars are that the seized thondy articles and the reference samples are respectively having the colours as mentioned above which is quite distinct from brown colour. It is not known as to how the liquid that was tested was bearing brown colour. The defence has made concrete suggestions during the cross-examination of PW-9 that about the lack and proper preservations of the seized thondy samples and the reference samples. PW-9, no concrete evidence is forthcoming from the prosecution as to how and where actually the seized thondy articles and reference samples were kept and preserved during the time till the forwarding of the same to the laboratory. No evidence is also forthcoming for the prosecution as to whether the seized thondy articles and its samples as well as the reference samples were preserved in a proper manner till the same had reached the laboratory concerned. Therefore it is all the more clear that there is neither any evidence to show that the seized thondy articles and the reference samples were kept in a proper manner so as to rule out all the possibilities of tampering or even contamination due to natural or other causes but also that there is concrete evidence adduced before the court below which fairly point out that both the seized thondy samples as well as the reference samples have undergone drastic difference in its appearance on the basis of colour.

28. It has to be further noted that as per the evidence of PW-9, the samples of M.O.4 series of contraband articles were taken on 1.2.2012 and that the said samples reached the laboratory only as late as on 18.6.2012. It can be seen from Ext.P14 that the said sample taken from M.O.4 series of contraband articles reached the laboratory concerned only as late as on 18.6.2012. So also the reference venom samples were taken on 16.4.2012 as per Ext.P15 mahazar dated 16.4.2012. But the said reference sample has reached the said laboratory only as late on 12.6.2012. But there is no evidence to show as to where and how the seized thondy samples and the reference samples were kept and preserved from the time of its initial collection to the day on which it is reached the laboratory concerned. Therefore, since there is no evidence let in by the prosecution to clinchingly show that the same has been kept and preserved in a fool-proof manner so as to rule out only tampering or contamination due to any other external or other causes, it cannot held that the same has been kept and preserved in a fool-proof manner and therefore the quality of the samples and the actual sample of both the seized thondy article as well as reference samples that tested by the laboratory cannot be held to be of the requisite standard for safe reliance.

29. Now the aforementioned two issues regarding the actual procedure adopted in the sampling process as well as the delay in sending the seized articles to the court, will have to be examined in the light of the legal position settled in this regard.

30. This Court in the case Mohanan V State of Kerala reported in 2014(4) KLJ 32 which dealt with a similar offence under Section 55(a) of the Kerala Abkari Act has held in paragraphs 11 and 12 thereof as follows: 

"11. A Division Bench of this Court in the decision reported in Ravi v. State of Kerala [2011(3) KLT 353] it has held that, 

"The production of the property before the court should take place without unnecessary delay and there should be an explanation for the delay when there is delayed production of the property". 

As rightly pointed out by the learned counsel for the appellant, section 170(2) of Cr.P.C. also mandate that, 

"The properties or weapons shall be produced before the court concerned when the accused being produced." 

But in the present case, Ext.P4 property list would show that the material objects and the sample were produced before the court only on 27.11.1998, though the alleged seizure was effected on 17.11.1998. Ext.P4 property list contained a date endorsed by the Magistrate of the committal court by which, on 27.11.1998, the learned Magistrate ordered to verify and receive the material objects. It is also relevant to note that on the reverse side of Ext.P4, there is another endorsement dated 30.11.1998, by which the learned Magistrate allowed to return item no.1 to the safe custody of the Sub Inspector of police, Chathannur. So, the above endorsements shows that the sample as well as the material objects were produced not on any date near to the date of alleged seizure, but only on 27.11.1998. It is pertinent to note that there is another endorsement in Ext.P4, which reads as "despatched on 25.11.1998". The above endorsement pre- supposes that the material objects and the samples were despatched from the Police Station on 25.11.1998. But still there is a question as to whether the samples and the contraband article were kept in safe custody, till the same produced before the court on 27.11.1998. PW4 is the Sub Inspector of Police who detected the crime and who produced the material objects and samples before the court. No explanation is forthcoming from PW4, in not producing the samples and contraband article before the court, immediately after the seizure of the same on 17.11.1998. So in the present case, the prosecution is duty bound to explain as to who are the custodian of the contraband article as well as the samples and what are the safety measures taken to keep the samples intact and to prevent tampering of the same during the period between 17.11.1998 and 25.11.1998 and from 25.11.1998 till 27.11.1998. But absolutely there is no whisper from the side of PW4 in this regard. In Narayani Vs. Excise Inspector (2002(3) KLT 725) this Court has held that, 

"No evidence is forthcoming as to who was in possession of contraband till it was produced in court and it is evident from the testimony of PW4 that he was not in custody of the contraband." 

In the very same decision, this Court has also held that, 

"In the absence of any evidence to prove that residue and sample were kept in the proper custody till the date of producing the same before Court on 13.9.98, the chance of tampering with the sample taken and the residue seized cannot be ruled out." 

The available evidence, including Ext.P4 document which is a valid document relied on by the prosecution and in the absence of any explanation either from PW3 or PW4, it cannot be said that there was no tampering of the sample allegedly drawn by PW4 from the contraband article allegedly seized from the possession of the accused. So, the unexplained delay of 10 days in producing the sample and contraband article before the court and the failure on the part of Pws.3 and 4 in deposing and giving explanation before the court that, as to who was the custodian of both the contraband article and the sample, during the period mentioned above, and the safety measures adopted to keep the sample intact, without any room for tampering the same, are certainly fatal to the prosecution. report,12.isItseen certified that, 

"The seal on the bottle was intact and is also relevant to note that in Ext.P6 chemical analysis it found tallied with the sample seal provided." 

I fail to understand on what materials and evidence, the chemical examiner issued such certificate. In Ext.P1 mahazar, which said to have prepared at the spot, there is no description about the seal claimed to have affixed on the sample. No specimen seal impression is provided in Ext.P1 mahazar. So, the available evidence, mainly Ext.P1 and the deposition of Pws.3 and 4, are absent about the seal allegedly affixed on the sample bottle. In the present case, no proper forwarding note or requisition filed before the court to send the sample for chemical analysis. On a perusal on Ext.P5 requisition, which shows that there was a formal request to send the sample. But the details including the quantity of the sample and the description of the sample bottle etc. are absent. It is also relevant to note that no sample seal is provided in Ext.P5 requisition. Had the sample seal provided in Ext.P5 requisition and the same forwarded to the chemical examiner, they could have made a comparison and come into conclusion as to whether the seal affixed on the sample is tallying with the sample seal so provided. But in the present case, there is no evidence as to the seal affixed on the sample bottle, or the sample of the seal so affixed was forwarded to the chemical examiner. In the absence of such evidence, no evidentiary value can be attached to the certificate Ext.P6, issued by the chemical examiner. Therefore, the only conclusion that can be arrived is that there is no legal evidence to show that what allegedly seized from the possession of the accused is illicit arrack. From the above discussions it can be seen that, there is culpable delay in producing the sample as well as the contraband article in the committal court, which delay is not explained and there is no guarantee that the sample which was subjected to chemical analysis by the chemical examiner is the same sample drawn from the contraband article allegedly seized from the possession of the appellant/accused. So, according to me, the prosecution has miserably failed to withstand the test laid by the Division Bench of this Court in the decision cited supra and the tampering of the samples cannot be ruled out. Therefore, according to me, the prosecution has miserably failed to prove its case against the appellant/accused beyond reasonable doubt and therefore the conviction recorded by the trial court cannot be approved. Accordingly, the conviction recorded by the trial court against the appellant for the offence under Section 55(a) of the Abkari Act is set aside." 

31. In the said decision this Court mainly relied on a Division Bench holding of this Court in Ravi V State of Kerala reported in 2011(3) KLT 353. This Court held therein that the prosecution is duty bound to explain as to who are the custodians of the contraband article as well as the samples and as to what are the safety measures taken to keep the samples intact and to prevent tampering of the same during the period in question and this Court held that there was no whisper in the evidence tendered by the main prosecution witness, in that regard. In the case Narayanan V Excise Inspector reported in 2002(3) KLT 725, this Court held that no evidence was forthcoming as to who was in possession of the contraband till it was produced before court and that in the absence of any evidence to prove that the residue and the samples were kept in proper custody till the date of producing the same before the court, chance of tampering with sample taken and the residue seized cannot be ruled out. Accordingly, this Court held in Mohanan's case, cited supra, that in the absence of any explanation from the prosecution witnesses, it cannot be said that there was no tampering of the samples allegedly drawn by PW4 therein from the contraband article allegedly seized from the possession of the accused. This Court in Paragraph 12 of Mohanan's case, cited supra, further held that there was no materials and evidence to show that there was seal which was affixed in the sample, as no specimen seal impression was provided in Ext.P1 mahazar therein. It was further noted therein that there was no proper forwarding requisition filed before the court to send the sample for chemical analysis. Since there was no conclusive evidence before the court that the samples were properly sealed etc., this Court held that there is no guarantee that the sample which was subjected to chemical analysis is the same sample drawn from the contraband article allegedly seized from the possession of the appellant/accused. It has also been found that there was no acceptable evidence to show that the contraband was in a sealed condition after the seals were broken open. So, it was held there is no evidence to rule out possibilities of tampering of the contraband due to any causes. Accordingly, this Court in Mohanan's case cited supra held that the prosecution miserably failed to prove that the samples were taken in a foolproof manner by which one can safely over rule possibilities of tampering and accordingly held that the prosecution cannot be said to have proved its case against the accused beyond reasonable doubt and therefore, the impugned conviction and sentence imposed on the accused therein was set aside by this Court. 

32. A similar view was reiterated by this Court in the case Rajamma V State of Kerala reported in 2014 (1) KLT 506. It would be profitable to make a reference to paragraph 10 and 11 of Rajamma's case cited supra, which reads as follows: 

"10. But mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under S.55(a) of the Abkari Act. The prosecution has got a further duty to prove that, when the accused was arrested, she was found in possession of the contraband article as alleged by the prosecution. But to prove the above fact, according to me, there is no evidence. The available evidences are insufficient to discharge the above duty of the prosecution. In the present case, the prosecution has no case that they have prepared a forwarding note and submitted before the court for sending the samples for chemical analysis. In this connection it is relevant to note that, when PW.1 was examined, he had deposed during his cross-examination that he has affixed his personal seal. So, the case of PW.1 is that he had affixed the personal seal, when he seized and sealed the material objects and the samples. The accused has seriously disputed the claim of PW.1 about the affixture of seal on the material objects as well as on the samples. PW.1 himself has admitted that the seal, which he claimed to have affixed on MO.1, is not seen on MO.1 at the time of his examination. In this case no forwarding note or requisition for sending the samples for chemical analysis is prepared and filed before the court. If a formal requisition or forwarding note is prepared and filed before the court, the same would have contained the sample seal, of the seal allegedly affixed by PW.1 on the sample bottle. The investigating officer has also deposed that he is not aware whether any specimen seal is produced before the court. So, absolutely there is no evidence to convince the court that the prosecution has proved that the sample seal or specimen impression of the seal, alleged to have been affixed in the sample by PW.1 has been and to ensure that the sample seal,examiner provided to the chemical for their verification so provided, is tallying with the seal affixed on the sample bottle. In spite of the above fact and in the absence of sample seal, however in Ext.P3, it is certified that the seal of the sample bottle is in tact and tallied with sample seal provided. Therefore, according to me, no evidentiary value can be given to Ext.P3 chemical analysis report. In the absence of any link evidence to show that the very same sample which drawn from the contraband article allegedly seized from the possession of the accused reached the hands of the chemical examiner, it is unsafe to convict the appellant who is a lady.

11. A Division Bench of this Court in the decision reported in Ravi v. State of Kerala (2011 (3) KLT 353) has held that, the prosecution has a duty to show that the sample allegedly drawn from the contraband article said to have seized from the possession of the accused reached the hands of the chemical examiner in a foolproof condition. On application of the above dictum in the present case and in the light of the facts and circumstances referred to above, it cannot be said that the prosecution has succeeded in discharging the above responsibility. Therefore, according to me, there is no guarantee that Ext.P3 chemical analysis report represents the sample allegedly drawn from the contraband article seized from the possession of the accused. In the light of the above discussion and in view of the evidence and materials referred to above, particularly in the absence of concrete and cogent evidence in support of the prosecution case it is unsafe to convict the appellant, who is a lady and therefore I am not inclined to concur the conviction recorded by the trial court against the appellant. Resultantly the conviction recorded against the appellant is set aside." 

33. This Court in the aforementioned Mohanan's case, cited supra, and Rajamma's case, cited supra, has mainly relied on the legal principles relied on by the Division Bench of this Court in the case Ravi V State of Kerala reported in 2011(3) KLT 353. The Division Bench of this Court in paragraph 5 of the decision in Ravi's case noted the provision of Section 102(3) of Code of Criminal Procedure which provided that every police officer acting under section 102(1) shall forthwith report the seizure to the Magistrate having jurisdiction where the property seized is such that it cannot be conveniently transported to the court or there is difficulty in securing proper accommodation of the custody of such property and accordingly held that there is no statutory mandate under Section 102(3) of Code of Criminal Procedure to forthwith produce the properties before the court and what is required is that the seizure of the property should be forthwith reported to the court. But, it was clearly held by the Bench therein that it does not mean that the detecting or Investigating Officer can produce the property leisurely, particularly when the nature and contents of the property can be convincingly established only through expert opinion obtained either in the form of chemical analysis or the report of a forensic or other expert for which the property should reach the court without reasonable delay. That delayed production before the court of the seized property is likely to be frowned upon by the courts because of the possible misuse or tampering with of such property while in the custody of the officer concerned and that there is also the chance of such property getting misplaced. The Division Bench in paragraph 6 of Ravi's case also noted the provisions of Section 40 of the Abkari Act, as the case was dealing with a similar offence under the Abkari Act. Section 40 of the Abkari Act provided that every arrested person and seized article shall be forwarded, without unnecessary delay, to the Magistrate or competent officer. Hence it was held that there is no statutory mandate under the Abkari Act to produce the property before the court forthwith. But, the very fact that the statute insist on production of the property before an officer of a particular designation or rank is to ensure that there is no misuse of the property and that unless the property is before the court, there cannot be proper ascertainment of the nature and content of the property by requisitioning the service of an expert through the instrumentality of the court and hence production of property before court without unreasonable delay is also a necessary requirement of law and delay in producing the property before the court by itself cannot be fatal to the prosecution only if the delay can be satisfactorily explained as held by this Court in Vikraman V State of Kerala reported in 2007(1) KLT 1010. Accordingly, the Division Bench held in paragraph 8 of Ravi's case reported in 2011(3) KLT 353, cited supra, as follows: 

"8. We, therefore, answer the reference as follows :- 

1. It is not necessary to produce the article seized under S.34 of the Abkari Act before the Magistrate "forthwith" either by virtue of S.103 (2) Cr.P.C or by virtue of any of the provisions of the Abkari Act or the Abkari Manual. What is enjoined by the statute is only that the seizure of the property should be reported forthwith to the Court. But we hasten to add that the production of the property before Court (wherever it is practicable) should also take place without unnecessary delay. There should be explanation for the delay when there is delayed production of the property. 

2. There is no violation of S.40(3)(b) of the Abkari Act if the arrested person or officer who is holding chargeseized Excise Inspector, notwithstanding the property is produced before an of the the fact that he is of a rank lower than that of an Excise Inspector." 

34. In the light of the aforementioned legal principles, the Division Bench held in paragraph 13 of Ravi's case, cited supra, that it cannot be assumed that the property was not in the safe custody of PW4 therein until the production before the court after 16 days of unexplained delay and that there is possibility that the properties would have been tampered. It was categorically held by the Division Bench therein that prosecution, in a case of this nature, can succeed only if they can prove that the contraband which was allegedly seized from the accused ultimately reached the hands of the chief examiner by change of hands in a tamper proof condition as held in the Apex Court decision as in State of Rajasthan V Daulath Ram reported in AIR 1980(SC) 1314), Valsala V State of Kerala reported in 1993(2) KLT 550(SC) etc. No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analyzed was the very same sample drawn from the contraband allegedly found in the possession of the accused as held in Sathi V State of Kerala reported in 2007(1) KLT SN 57(C No. 82) and Sasidharan V State of Kerala reported in 2007(1) KLT 720 etc. Accordingly, the impugned conviction and sentence imposed on the accused therein was held to be unsustainable and were set aside by the Division Bench in Ravi's case. It is to be noted that in Ravi's case the time taken until the seized samples were produced before the court was 16 days. In Mohanan's case, cited supra, the seized samples were produced before the court only after 10 days. In both the cases, due to unexplained delay and due to the aspect that the prosecution could not prove that the samples of the alleged contrabands had reached the analyst in a foolproof manner, the impugned conviction and sentence were interfered with.

35. In the instant case, there is no evidence whatsoever in the judicial proceedings before the court below as to when exactly the MO4 series of contraband articles and the samples taken therefrom as well as the reference venom samples have actually reached the court. The administrative departmental papers included in the case diary records, which were relied on by the court below, shows that the seized thondy articles and the samples taken therefrom had reached the court only on 06.02.2012. There is no evidence whatsoever as to whether the reference venom samples were forwarded to the court or not. Obviously it has clearly come out in evidence that the sample from the MO4 series were taken before MO4 series had reached the court. Section 50(4) of the Wild Life (Protection) Act clearly mandates that the seized articles shall be forthwith produced before the jurisdictional Magistrate concerned. Therefore, this provision in Section 50(4) is unlike the provision in Section 102(3) of the Code of Criminal Procedure, which only insists that the seizure of the articles should be forthwith reported to the court. Still, this Court in Rajamma's case, Mohanan's case, and Ravi's case cited supra conclusively held that though there is no mandatory provision in the Abkari act (involving similar offence as in the instant case) mandating production of the seized articles forthwith before the Court, still the prosecution is legally bound to produce the seized articles immediately without any delay so that the articles comes into the custody of the court. This is because there should be sanctity for the entire process of seizure so that there is adequate and convincing evidence before the court that the samples which ultimately reached the analyst was in fact taken from the seized article and that it had reached the analyst in a foolproof, safe and proper manner. This is to ensure that confidence is inspired in the court in the evidence produced before the court to sustain any conviction for an offence involving unlawful possession of the contraband based on the report of the analyst. Whereas in the instant case a very strict and rigorous provision is incorporated in Section 50(4) Wild Life Act which is much more stricter and rigorous than the corresponding provision in the Code of Criminal Procedure and the Abkari Act. Here the production of the seized thondy articles as per Ext.P11 as well as the samples taken therefrom has reached the court for the first time only as late as on 06.02.2014. Moreover the samples had been taken from MO4 series contraband articles on 01.02.2014, long before the seized contraband had reached the court and therefore, the samples were taken from the contraband without any court intervention and it loses its sanctity as far as its evidentiary value itself. There is no evidence to show that the samples were kept in a sealed condition. Therefore, in the light of the legal principles laid down by this Court in Mohanan's case, Rajammas Case and Ravi's case, cited supra, and in the light of the Apex Court decision relied on therein, this Court has no hesitation to hold that the sampling process is vitiated in this case. So also the long and unexplained delay in sending the seized articles to the court is in violation of the mandatory provisions of Section 50(4) of the Wild Life (Protection) Act. Therefore, this Court cannot safely hold that the samples taken from the contraband has actually been taken from the contraband seized allegedly from the possession of the accused or that either the samples of the contraband or the contraband or the reference venom samples, have reached the hands of the analyst (PW10) in a foolproof and secured manner. Therefore, any evidence adduced on the basis of such process has to be treated as vitiated and cannot be in any manner use for safely arriving at a decision to convict the accused for a criminal offence under Section 51(1) of the Wile Life (Protection) Act.

36. The trial court in paragraph 28 of the judgment dated 23.10.2013 has held as follows: 

"28. Learned counsel for the accused pointed out that as a matter of fact both the accused have not given any confession statements before the Customs officials or any forest officials. So called statements do not contain any admissions of their guilty. Therefore, the statements recorded as per Exts.P2, P3, P16 and P17 have to be excluded from consideration. It is true that accused had not made any statements to the effect that they have possessed the snake venom knowing fully well that the said materials are as such. It is also true that the statements of A1 is contradictory to the statements of A2. But, on certain facts, the statement given by the accused is corroborated with other evidence produced by the prosecution. Ext.P3, P17 statements of A2 revealed the fact that he has acquaintance with A1 and they travelled together from Doha to Kochin and stayed in one room at hotel Excellency. It is therefore proved that the they together had taken the ticket to Chennai and taken the boarding pass for entry into departure terminal. Similarly Exts.P2, P16 statements of A1 would go to show that A2 entrusted the brief case containing the contraband articles. Therefore, the statements of accused to some extent corroborates the prosecution case." 

37. The learned prosecutor has urged the contention that Exts.P2, P3, P16 and P17 statements were given by A1 and A2 and that the said statements lead to the conclusion that A1 and A2 had previous acquaintance and they travelled together from Doha to Cochin and stayed together in one room in the hotel. It is further urged that it is proved by the prosecution that the accused took together the ticket to Chennai and had taken the boarding pass for entry to departure terminal. In Ext.P2 and P16 statements of A1, it is stated that A2 entrusted the suitcase containing the contraband article. On this basis it is urged by the learned Public Prosecutor that even if there is no confession statement by A1 and A2 that they possessed snake venom, their statements corroborated the prosecution case. This submission of the learned Public Prosecutor is made on the basis of the aforementioned findings rendered by the trial court in paragraph 28 of the trial court judgment as stated above. 

It is to be noted that Section 50(4) of the Wild Life (Protection) Act also mandate that the accused persons who are arrested shall be forthwith produced before the competent court according to law and that this should be after due intimation to the authorities mentioned therein. 

In the instant case A1 was arrested on 26.01.2012 at around 6:30 p.m. According to the prosecution, A2 had evaded the arrest on 26.01.2012 and had proceeded to Chennai and was arrested at Chennai railway station on 27.01.2012 early morning and he was brought over to Cochin Airport premises wherein the office of PW1 is situated. A2 had thus reached the Cochin Airport premises on 28.01.2012 at 8 a.m. It is the admitted case of prosecution that both A1 and A2 were produced before the jurisdictional Magistrate concerned only as late as on 28.01.2012 at 11p.m. True that A2 has evaded arrest on 20.06.2012 but he was intercepted at Chennai on 27.01.2012 early morning. 

Nothing prevented the officials concerned in producing him before the nearest Magistrate at Chennai on 27.01.2012, so as to comply with the statutory command of Section 50(4) of the Wild Life (Protection) Act, which is framed by the Parliament. At least A1 could have been produced before the jurisdictional Magistrate on 26.01.2012 immediately after his arrest and A2 could have been produced before the jurisdictional Magistrate at least immediately after he had reached the Cochin Airport premises on 28.01.2012 at 8 a.m. Therefore, the very arrest and continued initial detention of the accused in this case is not in compliance with the mandatory provisions under Section 50(4) of the Wild Life (Protection) Act. 

The Sessions Court in paragraph 14 of the judgment dated 03.05.2014 has held that the confession statements cannot be relied on for any purpose in view of the embargo under Section 26 of the Evidence Act. True that the embargo under Section 26 of the Evidence Act would be attracted only if the confession statement is made to the police officer and the instant statements have been made by A1 and A2 to PW1 (Air Customs Officer) and PW2 (Divisional Forest Officer), who are not police officers. Even if the said confession statements are relied on as urged by the learned Public Prosecutor and as found in paragraph 27 of the trial court judgment, it can only lead to a conclusion that A1 and A2 were having a consensual meeting of minds or that they were acting conjointly. Even if this conclusion is reached, it is not safe for the court to render any finding of conviction on the guilt of the accused for the offence under Section 51(1) of the Wild Life (Protection) Act, in view of the aforementioned aspects due to the lack of sufficient proof beyond reasonable doubt based on Ext.P14 or due to the vitiating aspects in the sampling process and in the long delay in sending the seized articles to the court etc. 

Therefore, this Court is in full agreement with the conclusion of the Sessions Court in the judgment dated 03.05.2014 that conviction and sentence imposed on the accused herein are unsustainable. Accordingly, this Court has no hesitation to hold that the Sessions Court concerned was fully right in finding that the respondents in each of these appeals (Accused Nos. 1 and 2 in C.C.No.1420/2012 on the file of the Judicial First Class Magistrate's Court-I, Perumbavoor), are not guilty of the offences punishable under Section 51(1) of the Wild Life (Protection) Act and in consequently ordering their acquittal under Section 248(1) Cr.P.C.

38. It has been ordered in para 17 of the impugned common judgment dated 3.5.2014 of the Court of Additional Sessions Judge, Muvattupuzha in Crl.Appeal Nos.565/2013 and 558/2013 preferred by accused 1 and 2 in C.C.No. 1420/2012 on the file of the Judicial First Class Magistrate Court-I, Perumbavaoor as follows: 

"In the result, Crl.Appeal Nos.565/13 and 558/13 are allowed. The appellants/accused are found not guilty of the offence punishable under Section 51 of the Wild Life (Protection) Act and they are acquitted under Section 248(1) Cr.P.C. The accused are set at liberty if their continued detention is not warranted in any other cases......" 

39. In view of the findings and conclusions arrived at by this Court as detailed hereinabove in this judgment, this Court is of the considered opinion that the aforementioned conclusions of the lower appellate court in paragraph 17 of the common impugned judgment as quoted above, do not require any interference. Accordingly, these Crl.Appeals, viz., Crl.Appeal Nos.673/2014 and 605/2014 are dismissed. 

The Registry shall forthwith send back the Lower Court Records. 

The Registry is directed to communicate the gist of this judgment to the prison concerned for effectuating the release of the accused as ordered by the Sessions Court concerned in the aforementioned impugned common judgment.

40. The learned counsel for the respondents in these appeals, viz., accused Nos.1 and 2 respectively, submit that both accused Nos.1 and 2 are foreign nationals and that their valid visa and travel documents have already been exhausted due to their detention in connection with this case. It is open to the competent authorities of the State of Kerala and the Union of India to take appropriate action in accordance with law, for deportation of both the accused, who are stated to be foreign nationals, if so warranted. 

Sd/- sdk+ 

ALEXANDER THOMAS, JUDGE 

///True copy/// 

P.S. to Judge sdk+p.16 rka.p.41 vdv.p.58