JUDGMENT : K. Babu, J. Challenge in this appeal is to the judgment dated 20-09-2006 passed by the learned Assistant Sessions Judge, Neyyattinkara in Sessions Case, S.C No.660/2004. The appellant (hereinafter referred to as 'the accused') was convicted of the offence under Section 8(1) read with 55(a) of the Abkari Act by the learned Assistant Sessions Judge. 2. The genesis of the case dates back to 10-08-1997. The accused was found in possession of 5 litres of illicit arrack in a jerry can at Nettathanni junction in Kottukal desom. He was arrested by the Excise Inspector, Neyyattinkara and the contraband substance was seized from his possession. 3. After completion of investigation on 03-04-2000 final report was submitted against the accused for the offence punishable under Section 8(1) read with 55(a) of the Abkari Act before the Judicial First Class Magistrate Court-II, Neyyanttikara. The case was committed to the Sessions Court, Thiruvananthapuram from where it was made over to the Assistant Sessions Court, Neyyattinkara. On appearance of the accused charge was framed against him for the offence punishable under Section 8(1) read with 55(a) of the Abkari Act. The accused pleaded not guilty to the charge levelled against him and therefore, he came to be tried by the Assistant Sessions Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts.P1 to P3 and MO1. 5. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there was evidence against the accused and hence he was called upon to enter on his defence and to adduce any evidence that he may have in support thereof. From the side of the defence DWs 1 and 2 were examined. The trial court, after hearing arguments addressed from both sides, passed the impugned judgment on 20-09-2006 convicting the accused under Section 8(1) read with 55(a) of the Abkari Act and sentencing him to undergo rigorous imprisonment for a term of two years and to pay fine of Rs.1 Lakh. 6. The accused filed this appeal on 13-10-2006 which was admitted by this Court as early as on 16-10-2006. The matter was placed for hearing on 30-06-2021. 7. Heard Sri. R.T. Pradeep, learned counsel appearing for the accused and Sri. 6. The accused filed this appeal on 13-10-2006 which was admitted by this Court as early as on 16-10-2006. The matter was placed for hearing on 30-06-2021. 7. Heard Sri. R.T. Pradeep, learned counsel appearing for the accused and Sri. M.S. Breez, learned Senior Public Prosecutor appearing for the respondent. 8. The learned Public Prosecutor submitted that this appeal ought to have been filed before the Sessions Court under Section 374(3)(a) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'). The learned counsel for the accused submitted that in view of the prolonged pendency of the appeal this Court may proceed with the matter and decide the appeal on merits. 9. The present appeal challenging a sentence of imprisonment for a term of two years and to pay fine of Rs.1 Lakh passed by the learned Assistant Sessions Judge ought to have been instituted before the Sessions Court under Section 374 (3)(a) of the Code. As per Section 374 (2) of the Code the appeal challenging conviction on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court, in which sentence of imprisonment for more than seven years has been passed may appeal to the High Court. 10. The points that arise for consideration: (i) Is it just and reasonable to relegate the accused to the Sessions Court by returning the appeal for presenting it before that court? (ii) Whether the impugned judgment of conviction and sentence requires interference or not. Point No.1: 11. The offence alleged against the accused was detected on 10-08-1997 by the Excise Inspector, Neyyattinkara (PW3). The investigating agency had taken more than two and half years to complete the investigation. Final report was submitted before the committal court on 03-04-2000. The trial commenced only on 18-07-2006, after a long lapse of more than six years. After conclusion of the trial the accused was convicted on 20-09-2006. 12. The appeal, though instituted mistakenly, has been pending on the files of this Court for the last more than 14 years. 13. Speedy investigations and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution. 14. 12. The appeal, though instituted mistakenly, has been pending on the files of this Court for the last more than 14 years. 13. Speedy investigations and trial are mandated by the letter and spirit of the provisions of the Code and the constitutional protection enshrined in Article 21 of the Constitution. 14. The Honourable Apex Court had observed that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty except according to procedure established by law; that such procedure is not some semblance of a procedure, but the procedure should be 'reasonable, fair and just'; and therefrom flows, without doubt, the right to speedy trial. It was also observed that no procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just' and it would fall foul of Article 21. The Apex Court clarified that speedy trial means reasonably expeditious trial which is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21 (See Maneka Gandhi v. Union of India and Another [ (1978) 1 SCC 248 ], Hussainara Khatoon and Others v. Home Secretary, State of Bihar [ (1980) 1 SCC 81 ]. 15. In Abdul Rehman Antulay and Others v. R.S. Nayak and Another [ (1992) 1 SCC 225 ] the Honourable Apex Court again considered the exposition of Article 21 of the Constitution and formulated a comprehensive set of propositions, meant to serve as guidelines, upholding the right to speedy and public trial a constitutional guarantee. 15. In Abdul Rehman Antulay and Others v. R.S. Nayak and Another [ (1992) 1 SCC 225 ] the Honourable Apex Court again considered the exposition of Article 21 of the Constitution and formulated a comprehensive set of propositions, meant to serve as guidelines, upholding the right to speedy and public trial a constitutional guarantee. Those propositions include the following : (i) Fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) Right to speedy trial flowing from Article 21 encompasses all the stages, namely the stage of investigation, inquiry, trial, appeal, revision and retrial; (iii) In every case where the speedy trial is alleged to have been infringed, the first question to be put and answered is - who is responsible for the delay?; (iv) While determining whether undue delay has occurred (resulting in violation of right to speedy trial) one must have regard to all the attendant circumstances, including nature of offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on - what is called, the systemic delays; (v) Ultimately, the court has to balance and weigh several relevant factors -'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied; 16. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of county in holding the right to speedy trial a manifestation for fair, just and reasonable procedure enshrined in Article 21 [Vide: P. Ramachandra Rao v. State of Karnataka ( AIR 2002 SC 1856 )]. 17. The question whether the appeal is to be returned for presenting it before the Sessions Court is to be decided in the backdrop of the principles discussed above. 18. In the instant case though the offence was detected on 10-08-1997, investigation was completed only on 03-04-2000. It was after a lapse of 6 years the trial commenced in the court below. The appeal remained on the files of this Court for almost 14 years. Return of the appeal will certainly lead to denial of the right of the accused to speedy trial. 19. It was after a lapse of 6 years the trial commenced in the court below. The appeal remained on the files of this Court for almost 14 years. Return of the appeal will certainly lead to denial of the right of the accused to speedy trial. 19. When the appeal challenging conviction in which sentence of imprisonment is more than 7 years lies to the High Court under the Code it cannot be said that this Court lacks jurisdiction to entertain the present appeal and decide it on merits. 20. The High Court is vested with the inherent powers, recognised in Sec.482 of the Code, to do justice in a given case. 21. The inherent power of the High Court is a power that inheres in such court as it is a court of record, and not because it is conferred by the Code. This is a power vested by the Constitution inter alia, under Article 215. The inherent power to do justice in cases involving the liberty of the citizen would also emerge from Article 21 of the Constitution. Nothing in the Code shall be deemed to limit or affect the inherent powers of the High Court especially in matters involving the right to life and liberty. 22. I am of the considered view that taking into account the exceptional circumstances brought out in this case, justice demands that the appeal be decided on merits by this Court. Point No.2: 23. The learned counsel for the accused submitted that the prosecution failed to establish that the contraband substance, allegedly recovered from the possession of the accused, ultimately reached the Chemical Examiner's Laboratory. 24. PW3, the Excise Inspector, Neyyattinkara gave evidence that on 10-08-1997 at 12.50 p.m. the accused was found in possession of 5 litres of arrack in a jerry can at Nettathanni junction in Kottukal desom. PW3 further gave evidence that he seized the contraband substance from the possession of the accused and collected sample from it and sealed the same. According to PW3 the properties recovered from the place of occurrence were forwarded to the court. 25. PW2, an Excise Preventive Officer who was in the Excise team, supported the prosecution case. PW1, the independent witness, did not support the prosecution. 26. The learned counsel for the accused contended that there is no evidence to show that the properties were produced before the court without delay. 25. PW2, an Excise Preventive Officer who was in the Excise team, supported the prosecution case. PW1, the independent witness, did not support the prosecution. 26. The learned counsel for the accused contended that there is no evidence to show that the properties were produced before the court without delay. There is absolutely no evidence as to the date on which the properties including the sample were produced before the court. The property list (thondi list) as per which the properties were allegedly produced before the court was neither marked nor produced. A perusal of the lower court records shows that no such property list is available. PW3, the detecting officer, stated that he had sent the properties to the court. But he failed to specify the date on which the properties were sent and also the name of the official with whom the properties were forwarded. There is no acceptable evidence to show that the properties including the sample reached the court with their seals intact. 27. In Ravi v. State of Kerala [ 2011 (3) KHC 121 ] the Division Bench of this Court held that production of the property before the court should take place without unnecessary delay and that there should be explanation for the delay when there is delayed production of the property. In the absence of any acceptable material to show the date on which the properties including the sample reached the court and the detecting officer was unable to give evidence on the production of properties before the court the necessary inference is that the prosecution failed to establish that the properties were produced before the court without unnecessary delay. 28. The learned counsel for the accused further contended that there is lack of evidence as to the nature and description of the seal affixed on the bottle containing the sample. PW3 has not given evidence as to the nature and description of the seal affixed on the bottle containing the sample. Exhibit P1 seizure mahazar is also silent regarding the nature and description of the seal used by the detecting officer. 29. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. 29. The detecting officer, who has drawn the sample, has to give evidence as to the nature of the seal affixed on the bottle containing the sample. The nature of the seal used shall be mentioned in the seizure mahazar. The specimen of the seal shall be produced in the court. The specimen of the seal shall be provided in the seizure mahazar and also in the forwarding note so as to enable the Court to satisfy the genuineness of the sample produced in the court {Vide: Bhaskaran K. v. State of Kerala and another (2020 KHC 5296), Achuthan v. State of Kerala [ 2016 (1) KLD 391 ], Krishnadas v. State of Kerala (2019 KHC 191)}. 30. The learned counsel for the accused further contended that the prosecution failed to establish the tamper-proof despatch of the sample to the laboratory due to the reason that there is no evidence to show that the copy of the forwarding note and the specimen impression of the seal were produced before the court. 31. There is no request or forwarding note either produced or marked to indicate that a request was made to the Magistrate to send the sample to the Chemical Examiner for analysis. It is also pertinent to note that there is no material to show the date on which the sample was sent to the laboratory. There is also no evidence regarding the person with whom the sample was entrusted for delivering the same to the Chemical Examiner. The prosecution relied on Ext.P3 certificate of chemical analysis dated 17-12-1997 to show that the sample was duly despatched to the Chemical Examiner for analysis. In the absence of any forwarding note or requisition it is not explained as to how the learned Magistrate forwarded a bottle containing the sample to the Chemical Examiner as seen in Ext.P3. Even the office copy of the covering letter addressed to the Chemical Examiner has not been produced and marked. 32. In the absence of any forwarding note or requisition it is not explained as to how the learned Magistrate forwarded a bottle containing the sample to the Chemical Examiner as seen in Ext.P3. Even the office copy of the covering letter addressed to the Chemical Examiner has not been produced and marked. 32. The property clerk of the court who was the custodian of the properties ought to have been examined to prove matters such as (a) the date of receipt of the property before the Magistrate, (b) the condition in which those properties were received in court, (c) the fact whether sample was received and if so whether the seal if any on such sample was intact, (d) the date of despatch of the sample to the laboratory, (e) the name of the official with whom the sample was forwarded to the laboratory and (f ) the nature of the custody of the sample until then. 33. The learned counsel for the accused further submitted that no evidentiary value can be given to Ext.P3 certificate of chemical examination without establishing that the specimen impression of the seal was produced before the court and the same was provided to the Analyst for comparison. The learned counsel relied on Rajamma v. State of Kerala [ 2014 (1) KLT 506 )] to substantiate his contention. In Rajamma's case (supra) this Court held that the prosecution has to prove that the specimen impression of the seal, stated to have been affixed on the bottle containing the sample, was provided to the Chemical Examiner for verification and to ensure that the specimen seal, so provided, was tallying with the seal affixed on the sample and in the absence of such link evidence no sanctity can be attached to the chemical analysis report. 34. There is absolutely no evidence to convince the court that the prosecution produced the specimen impression of the seal before the court and the same was provided to the Analyst for comparison. Therefore, no evidentiary value can be given to Ext.P3 chemical analysis report. 35. In Vijay Pandey v. State of U.P. ( AIR 2019 SC 3569 ) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 36. 35. In Vijay Pandey v. State of U.P. ( AIR 2019 SC 3569 ) the Apex Court held that mere production of a laboratory report that the sample tested was the contraband substance cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 36. It is well settled that, the prosecution in a case of this nature can succeed only if it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample which was drawn from the bulk quantity of the alleged contraband substance said to have been possessed by the accused. This is more so, when the sample might have changed several hands before it reached the hands of the Chemical Examiner. {Vide: State of Rajasthan v. Daulat Ram [AIR (1980) SC 1314], Valsala v. State of Kerala (1993 KHC 798), Sathi v. State of Kerala [2007 (1) KHC 778]}. 37. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to benefit of doubt arising from the absence of link evidence as discussed above. 38. The conviction and sentence recorded by the trial court cannot be sustained. In the result, the accused is acquitted of the charge under Sec.55(a) of the Abkari Act. He is set at liberty. The appeal is allowed as above.