Ajayakumar @ Ani v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **THURSDAY, THE 7TH DAY OF JANUARY 2016/17TH POUSHA, 1937** **CRL.A.No. 1933 of 2004 ( ) ---------------------------** **AGAINST THE JUDGMENT IN SC 522/2002 of ADDITIONAL DISTRICT COURT (ADHOC-II), TRIVANDRUM** **--------------------** **APPELLANT(S)/ACCUSED:: ---------------------------------------** **AJAYAKUMAR @ ANI S/o.SEKHARAN ARASUMMODU KIZHAKKUMKARA, VILAYIL VEEDU, KOLLUMURI ATTIPRA VILLAGE, AGED 33.** **BY ADV. SRI.BLAZE K.JOSE** **RESPONDENT(S): --------------------------** **STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **R2 BY PUBLIC PROSECUTOR SRI. N. SURESH** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 07-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **STK** ## **P.D. RAJAN, J.** ## **------------------------------Crl.Appeal No.1933 of 2004 ---------------------------------------------Dated this the 7[th] of January 2016** ## **JUDGMENT** This appeal is preferred against the conviction and sentence in S.C.522/02 of the Additional Sessions Judge, Fast Track II, Trivandrum for having committed offence punishable under Section 55(a) of the Abkari Act. The charge against the appellant is that on 12.07.97 at 4.00 pm., accused was found in possession of 20 litres of arrack for sale near the Kallingal bridge by the Circle Inspector of Police, Kazhakkuttom. On seeing the police party, he tried to ran away. The police party followed him and intercepted him. While questioning, he produced another 3 cannas of arrack. The accused was arrested and contraband articles were seized. Reaching at the Police Station, they registered a crime. After completing investigation, laid charge before Judicial First Class Magistrate-III, Trivandrum. Subsequently, the case was committed to Sessions Court, Trivandrum for trial. 2. During trial, prosecution examined PW1 to PW4 ## **Crl.Appeal No.1933 of 2004 2** and marked Exts.P1 to P4 as documentary evidence and the jerry can was marked MO1. The incriminating circumstances brought out in evidence were denied by the accused while questioning him. He did not adduced any defence evidence. The trial court convicted him under Section 55(a) of the Abkari Act and sentenced to undergo rigorous imprisonment for 3 years and fine of Rupees One lakh, with default sentence of 6 months. Being aggrieved by that, he preferred this appeal. 3. There is a delay of 4 days in producing the seized articles before court. The forwarding note was not prepared by the detecting officer, therefore, no guarantee that seized articles were properly sealed and produced before court. There is no arrest memo. In the light of the above legal infirmities, appellant is entitled to get the benefit of doubt. 4. The learned Public Prosecutor submitted that there was no forwarding note or requisition marked in the trial court. But the delay has been properly explained and no infirmity attached to that aspect. ## **Crl.Appeal No.1933 of 2004 3** 5. Prosecution examined PW3, the C.I. of Police, Kazhakkoottam as occurrence witness. His evidence shows that on 12.07.97 at 4.00 pm, he reached at Arasummoodu Junction, that time, he got information that appellant was selling illicit arrack at Kallingal Junction. When he arrived at the place of occurrence, the appellant was found carrying a cannas and walking towards eastern side. On seeing the police party, he tried to ran away. The police party intercepted him and inspected the cannas and found 20 litres of arrack. He also shown another 3 cannas. PW3 seized those articles after preparing a mahazar. He took 375 ml as sample. MO1 series are the seized cannas. Ext.P1 is the seizure mahazar. Reaching at the Police Station, he registered a crime. Ext.P2 is the FIR, Ext.P3 is the property list, Ext.P4 is the chemical examination result. After completing investigation, he laid charge before court. 6. PW1 is an independent witness who supported the evidence of PW3. He stated that MO1 series were taken from the possession of the appellant and stated the ## **Crl.Appeal No.1933 of 2004 4** story of PW3. PW2 is another Police Constable attached to the Office of PW3. He also gave the same statement given by PW1. PW3 verified the charge and laid final report before Judicial First Class Magistrate, Thiruvananthapuram. A close analysis of the evidence of PW1 to PW3, it show that MO1 series were seized from the possession of the appellant. It is admitted that the property was produced before court on 16.07.97. The offence was detected on 12.07.97. There is a delay of 4 days in producing the property before court. According to Section 40(3) of the Abkari Act, every person arrested under Section 34, 31 or 35 shall be produced before and article seized under 34 shall be forwarded without unnecessary delay to the Officer-in-charge of the nearest Police station or the officer empowered under Section 5 (a) or the Abkari Inspector. PW3 deposed that he had produce the article in the Police Station, therefore, 4 days delay is not fatal to the prosecution. This court in **Rajamma V. State of Kerala (2014(1) KLT 506)** held that, ## **Crl.Appeal No.1933 of 2004 5** “mere arrest of the accused with the material objects is not sufficient to establish that the accused has committed the offence punishable under Section 55(a) of the Abkari Act”. 7. It is pertinent to note that the article seized by the detecting officer produced in the Police Station has to be reached before court without unnecessary delay. They have to ensure that when a sample is taken from the seized article, which was forwarded to the court for chemical examination was the same sample drawn from the contraband liquor seized from the accused. Therefore, prosecution has to explain the satisfactory evidence and link, whether it was the same sample at the time of seizure had reached in the hands of the chemical examiner for examination. Such procedures are not found in this case. This court in **Ravi v. State of Kerala (2011 (3) KLT 353)** in para 13, held as follows; “13. It is difficult for us to believe that PW4 had produced the properties on 25.08.1997 and the Thondy Section Clerk refused to receive the properties on the ground that he was too busy. Even assuming that such a thing ## **Crl.Appeal No.1933 of 2004 6** happened, we would have expected the prosecution to examine the Thondy Section Clerk to substantiate the above explanation. For reasons best known to the prosecution the Thondy Section Clerk was not examined. If so, it cannot be assumed that the property was in the safe custody of PW4 until their production before Court after 16 days. There is the possibility that the properties would have been tampered with. The prosecution, in a case of this nature can succeed only if it is shown that the contraband liquor which was allegedly seized from the accused ultimately reached the hands of the Chemical Examiner by change of hands in a tamper-proof condition. (Vide State of Rajasthan v. Daulath Ram (AIR 1980 SC 1314) and Valsala v. State of Kerala (1993 (2) KLT 550 (SC). No conviction can be entered against the accused in a prosecution as the present one unless it is proved that the sample which was analysed in the Chemical Examiner's laboratory was the very same sample drawn from the contraband liquor allegedly found in the possession of the accused (See Sathi v. State of Kerala (2007 (1) KLT SN 57 (C.No.82) and Sasidharan v. State of Kerala (2007 (1) KLT 720). There is no satisfactory link evidence to show that it was the same bottles seized from the appellant ## **Crl.Appeal No.1933 of 2004 7** which eventually found their way into the hands of the Chemical Examiner and that there was no meddling or tampering with the bottles while they were in the custody of PW4. Hence, the result of Ext.P7 Chemical Analysis cannot be applied against the appellant.” In the light of the above legal infirmities, the appellant is entitled to get the benefit of doubt. In the result, the conviction and sentence passed by the trial court under Section 55(a) of the Abkari Act is set aside and he is set at liberty. This appeal is allowed. STK Sd/- **P.D. RAJAN, JUDGE //TRUE COPY//** **P.A. TO JUDGE**