Abraham Tharyan and Aliyamma v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **THURSDAY, THE 23[RD] DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943** **CRL.A NO. 1536 OF 2006** **AGAINST THE ORDER/JUDGMENT IN SC 1999/2002 OF III ADDITIONAL** **DISTRICT COURT, KOLLAM, KOLLAM** **CP 95/2001 OF JUDICIAL MAGISTRATE OF FIRST CLASS, PARAVOOR, KOLLAM** ## **APPELLANTS/ACCUSED:** 1 ABRAHAM THARYAN, S/O. THARYAN, KALAKKAL PUTHEN VEEDU, KALAKKAL, NEDUMPANA CHERY, NEDUMPANA VILLAGE. 2 ALIYAMMA, D/O. KUNJAMMA, KALAKKAL PUTHEN VEEDU, KALAKKAL, NEDUMPANA CHERY, NEDUMPANA VILLAGE. BY ADV ABRAHAM THARYAN(PARTY) ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, . BY ADV SRI. M.C. ASHI (P.P) THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Crl.A No.1536 of 2006 2 ## **K.BABU, J** . -------------------------------------Criminal Appeal No.1536 of 2006 --------------------------------------Dated this the 23[rd] day of September, 2021 ## **JUDGMENT** Aggrieved by the judgment dated 12-05-2006, passed by the III[rd] Additional Sessions Judge, Kollam in S.C.No.1999/2002, the two accused have preferred this appeal. 2. The trial court convicted the accused for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. 3. The prosecution case is that on 26-10-2000, the two accused, being husband and wife, were found in possession of two cans containing 20 litres of illicit arrack and a glass tumbler at Kalakkal in Nedumpana Village. 4. After completion of the investigation, the final report was submitted against the accused for the offences punishable under Sections 55(a) and 55(i) of Crl.A No.1536 of 2006 **==> picture [6 x 8] intentionally omitted <==** the Abkari Act before the Judicial First Class Magistrate Court, Paravoor. The case was committed to the Sessions Court, Kollam, from where it was made over to the III[rd] Additional Sessions Court, Kollam. On the appearance of the accused charges were framed against them for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. The accused pleaded not guilty to the charges, and therefore, they came to be tried by the trial court for the aforesaid offences. 5. The prosecution examined PWs 1 to 5 and proved Exts.P1 to P7 and MOs 1 to 3. 6. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused, and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial court, 4 Crl.A No.1536 of 2006 after hearing the arguments addressed from both sides, found that the accused are guilty of offences under Sections 55(a) and 55(i) of the Abkari Act and they were convicted thereunder. The accused were sentenced to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1 Lakh under section 55(i) of the Abkari Act. No separate sentence was awarded for the offence under Section 55(a) of the Abkari Act. 7. Heard. 8. Challenge to the impugned judgment is on the following two grounds: - (i) The delay in the production of the properties including the sample before the court has not been satisfactorily explained. - (ii) The prosecution failed to establish that the contraband substance allegedly recovered from the place of occurrence eventually reached the Chemical Examiner’s laboratory. Crl.A No.1536 of 2006 5 9. PW3, the Sub Inspector of Police, Chathannoor detected the offence. PW3 gave evidence that on 26-10-2000 at 6.15 p.m. on getting reliable information that the accused are engaged in the sale of illicit arrack, the police team led by him proceeded to Kalakkal Puthenveedu, their residence. PW3 recovered two cans containing 20 litres of illicit arrack at the northern courtyard of the residence of the accused. He also seized MO2 glass. PW3 collected samples in four bottles and sealed the same. He prepared Ext.P1 seizure mahazar. The accused were arrested from the spot. 10. PW4, the police constable who had accompanied PW3 in the search and seizure, supported the prosecution case. PW1, an independent witness examined to prove the incident proper, partially supported the prosecution. According to PW1, he had witnessed the arrest of the accused at the public road in front of his residence. He had not witnessed the alleged 6 Crl.A No.1536 of 2006 seizure of illicit arrack from the courtyard of the residence of the accused. PW2, another independent witness, did not support the prosecution. PW5, a woman police constable, stated that she had arrested accused No.2. 11. The seizure of the contraband substance was effected on 26-10-2000. Exhibit P5, the list of properties, shows that the properties, including the bottles containing the sample, were produced before the court only on 13-11-2000. The explanation given by PW3 for the delay in the production of the properties was that the properties including the samples were kept in his safe custody. The explanation given by PW3 is not acceptable. 12. In _**Ravi v. State of Kerala**_ [2011 (3) KHC 121] on the question of delay in the production of the properties, a Division Bench of this Court held as follows: - _“8. We, therefore, answer the reference as_ - _follows: 1. It is not necessary to produce the article_ Crl.A No.1536 of 2006 7 _seized under S.34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of S.102(3) Cr.PC 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.” (Emphasis supplied)_ The Division Bench held that the production of the properties should take place without unnecessary delay and there should be an explanation for the delay when there is delayed production of the property. In the instant case, there is no explanation for the delayed production of the property. Unexplained delay in the production of the properties, including the bottles containing the sample, would lead to the conclusion that tampering with the samples could not be ruled out. 13. I have gone through the evidence of PW3, the detecting officer. He has not given evidence as to the nature and description of the seal stated to have been affixed on the bottles containing the sample. Exhibit P1 seizure mahazar is also silent regarding the nature and description of the seal affixed on the bottles 8 Crl.A No.1536 of 2006 containing the sample. 14. The detecting officer who drew the sample has to give evidence as to the nature of the seal affixed on the bottles 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), _**Krishnadas v. State of Kerala**_ [2019 KHC 191], _**Achuthan v. State of Kerala**_ [ILR 2016 (2) Ker 145]}. 15. When the specimen of the seal affixed on the bottles containing the sample is not produced before the court and forwarded to the Chemical Examiner for verification to ensure that the sample seal, so provided, is tallying with the seal affixed Crl.A No.1536 of 2006 9 on the bottles containing the sample, no evidentiary value can be given to the chemical analysis report and it cannot be concluded that the very same sample which was drawn from the contraband substance allegedly seized from the possession of the accused, reached the hands of the Chemical Examiner without any tampering (Vide: _**Rajamma v. State of Kerala**_ [(2014) 1 KLT 506)]. 16. The copy of the forwarding note, which contains the specimen of the seal used and the name of the official with whom the sample was entrusted for delivering to the Chemical Examiner’s laboratory, has not been produced and marked in this case. In _**Ramachandran v. State of Kerala**_ [2021 (1) KLT 793], while dealing with a case in which forwarding note was not produced and marked, this Court held thus: _“9. Since no forwarding note was produced and marked in this case, the prosecution could not establish the tamper – proof despatch of the sample to the laboratory. In the said circumstances, there is no satisfactory link evidence to show that it was the same sample which was drawn from the contraband seized from the appellant, which eventually reached_ 10 Crl.A No.1536 of 2006 _the hands of the chemical examiner by change of hands in a tamper – proof condition. In the said circumstances also, the appellant is entitled to benefit of doubt.”_ 17. 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 could be conclusive proof by itself and that the sample seized and that tested have to be co-related. 18. It is 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 that was drawn from the contraband substance allegedly recovered from the place of occurrence. {Vide: _**State of Rajasthan v. Daulat Ram**_ [AIR (1980) SC 1314], _**Sasidharan v. State of Kerala**_ [2007 (1) KHC 275]}. 19. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in 11 Crl.A No.1536 of 2006 the laboratory. The accused are entitled to benefit of doubt arising from the absence of link evidence as discussed above. 20. The upshot of the above discussion is that the conviction entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. The appellants/accused are therefore not guilty of the offences punishable under Sections 55(a) and 55(i) of the Abkari Act. They are acquitted of the charges. They are set at liberty. The appeal is allowed as above. Sd/- K.BABU, JUDGE KAS