Aanath Kunhiraman v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE DR. JUSTICE KAUSER EDAPPAGATH WEDNESDAY, THE 15[TH] DAY OF SEPTEMBER 2021 / 24TH BHADRA, 1943** **CRL.A NO. 631 OF 2012** **AGAINST THE JUDGMENT DATED 24.4.2012 IN SC 168/2009 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THALASSERY, KANNUR** ## **APPELLANT/ACCUSED:** AANATH KUNHIRAMAN, S/O.KUNHAMBU, AANATH HOUSE, NUCHIYAD AMSOM, MUNDANNUR, KANNUR DT. BY ADV P.SHEEBA P. NARAYANAN ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. BY SRI ARAVIND V MATHEW-PP THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 8.09.2021, THE COURT ON 15.9.2021 DELIVERED THE FOLLOWING: Crl.Appeal No.631/2012 -:2:- J U D G M E N T Dated this the 15[th ] day of September, 2021 This is an appeal filed u/s 374(2) of the Cr.P.C against the judgment of conviction and sentence passed by the Sessions Court, Thalassery in SC No.168/2009 dated 24[th] April, 2012. 2. The accused/appellant faced trial for an offence u/s 8(1) of the Abkari Act. The prosecution case in short is that on 7/6/2008 at 7.15 p.m, the accused was found in possession of 1½ litres of arrack in a 5 litre jerry can in the courtyard of his house situated in Karimbala Colony in Mundanoor of Nuchiyad Amsom in contravention of the Abkari Act and Rules. 3. PW5, the Sub Inspector of Police, Ulikkal Police Station along with PW1, police constable while on patrol duty got information that the accused was selling arrack at the courtyard of his house in Karimbala Colony in Mundanoor. Accordingly, they reached the spot and the accused was intercepted and 5 litre jerry can filled with illicit arrack of 1½ litres was seized. The accused was arrested at the spot. The sample of arrack was Crl.Appeal No.631/2012 -:3:- taken in two 375 ml bottles. It was sealed, packed and labelled in the presence of the witnesses who were examined as PW2 and PW3. The balance arrack in jerry can was also seized and sealed. Ext.P1 seizure mahazar was prepared. Exts.P2 and P4 are the arrest memo and inspection memo prepared at the time of arresting the accused. Thereafter PW5 registered crime against the accused for the offence punishable u/s 8(1) of the Abkari Act. Ext.P5 is the FIR. The accused and seized articles were produced before the Magistrate Court. The sample was sent for chemical analysis and after the chemical analysis, the report was received which was marked as Ext.P8. The report shows that the sample contained ethyl alcohol. After completing the investigation, PW5 filed final report before the Magistrate. The learned Magistrate after complying with the statutory formalities committed the case for trial to the Court of Sessions. 4. The accused appeared before the court below. After hearing both sides, the court below framed charge against the accused u/s 8(1) of the Abkari Act. The charge was read over and explained to the accused who pleaded not guilty. 5. The prosecution examined PWs1 to 5 and marked Crl.Appeal No.631/2012 -:4:- Exts.P1 to P9. On completing the prosecution evidence, the accused was questioned u/s 313 of Cr.P.C. He denied all the incriminating circumstances brought against him during evidence. DW1 and DW2 were examined and Ext.D1 was marked on the side of the defence. After trial, the court below found the accused guilty u/s 8(1) of the Kerala Abkari Act and convicted the accused for the said offence. The accused was sentenced to undergo rigorous imprisonment for a period of 6 (six) months and to pay a fine of `1,00,000/- in default to suffer simple imprisonment for one month u/s 8(2) of the Abkari Act as per the impugned judgment. The said judgment is under challenge in this appeal. 6. Heard Smt.Sheeba, the learned counsel for the appellant and Sri.Aravind V. Mathew, the learned Public Prosecutor. 7. The learned counsel for the appellant assailed the finding of guilt passed against the appellant as illegal and unsustainable contending that there is undue delay in producing the seized contraband articles before the court, the benefit of which should, definitely, go to the accused. The counsel further Crl.Appeal No.631/2012 -:5:- submitted that the person who forwarded the sample for chemical analysis was not examined to prove that the sample forwarded was in a tamper proof condition or the same sample which was allegedly drawn at the spot reached the laboratory for chemical analysis. There is no acceptable legal evidence to prove the guilt of the accused other than the interested testimony of official witnesses, argued the counsel. 8. The first and foremost argument advanced by the learned counsel for the appellant is regarding the delay in producing the seized articles at the court. The evidence on record would show that there is delay of six days in producing the seized articles before the court. The sample was drawn on 7/6/2008 and it reached the court only on 13/6/2008 as evident from Ext.P6 property list. The observation in the impugned judgment that the seized article was produced at the court on 8/6/2008 is factually incorrect. It is true that mere delay is not fatal, until and unless the accused is able to show that there was possibility of manipulation of documents and records. The definite case of the appellant is that on account of the delay, there was possibility for tampering the seized articles. It is Crl.Appeal No.631/2012 -:6:- equally settled that the delay has to be properly explained by the prosecution. This Court in _**Ramankutty v. Excise Inspector, Chelannur Range**_ (2013 (3) KHC 308) has held that in the absence of satisfactory explanation by the prosecution, even delay of one day is fatal to the prosecution. In _**Anilkumar v. State of Kerala and Another**_ (2020 (3) KLJ 512), this Court held that inordinate and unexplained delay in producing the sample of the contraband substance before the court creates suspicion that the samples have been tampered with and that possibility of tampering or meddling with the sample cannot be ruled out in such cases. The Apex Court in _**State of Uttar Pradesh v. Hansraj @Hansu**_ [(2018) 18 SCC 355] has held that when there is delay in producing samples of the contraband substance in the court and when the evidence is that they were kept in the police station, the prosecution has to adduce evidence to show as to how and in what condition samples were preserved at the police station. In this case, no explanation has been offered by the prosecution showing the cause of the delay. No satisfactory explanation was also forthcoming from the prosecution as to the custodian of the contraband during the delayed period of six Crl.Appeal No.631/2012 -:7:- days. There is no evidence adduced by the prosecution to show as to how and in what condition the samples were kept at the police station during the period of six days till they were produced in the court. The next point urged by the learned counsel for the appellant is regarding the non examination of the person who forwarded the sample for chemical examination. Only if he is examined, the tamper proof condition of the sample could be established. It is settled that the prosecution 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 seized from the possession of the accused. In this case, the prosecution failed to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. 9. The aforesaid vital aspects were not taken into consideration by the court below while appreciating the prosecution evidence. For these reasons, I hold that the conviction and sentence passed by the court below cannot be sustained. Crl.Appeal No.631/2012 -:8:- In the result, Crl.Appeal stands allowed. The conviction and sentence passed by the court below vide the impugned judgment are set aside. The appellant is found not guilty of the aforesaid offence and is acquitted. His bail bond is cancelled. **Sd/-** **DR. KAUSER EDAPPAGATH** **JUDGE** Rp