Anil Kumar and Remesan v. State of Kerala

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR WEDNESDAY, THE 15TH DAY OF FEBRUARY 2017/26TH MAGHA, 1938 CRL.A.No. 408 of 2008 ( ) -------------------------SC 428/2001 of ADDL.SESSIONS COURT(ABKARI ACT CASES), KOTTARAKKARA APPELLANTS/ACCUSED NOS.1 & 2: ----------------------------------------------- 1. ANIL KUMAR, S/O.CHANDRABOSE THENGUVILA VEEDU, CHETHADI MURI, MELILA VILLAGE. 2. REMESAN, S/O.GOPALAN KALLURAZHIKATHU VEEDU, MANNADI MURI, KADAMPANADU VILLAGE. BY ADVS.SRI.B.MOHANLAL SRI.BINDU SREEKUMAR RESPONDENT/COMPLAINANT: ----------------------------------------- STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR, SHRI M V ANANTHAN THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2017, ALONG WITH CRL.APPEAL NO.55/2008. THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **B.SUDHEENDRA KUMAR, J.** - - - - - - - - - - - - - - -- - - -- - - - - - - - - - -- - - - - - - - - Crl. Appeal Nos.408 and 550 of 2008 - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - - - - - - - - - Dated this the 15[th] day of February 2017 ## JUDGMENT The appellants are the accused before the court below. The appellants in both the appeals were convicted and sentenced under Sections 55(a) and (i) of the Abkari Act. The appellant in Crl. Appeal No.550 of 2008 was further convicted and sentenced by the court below under Section 57(a) of the Abkari Act. 2. The prosecution allegation can be briefly stated thus:- The first accused was the worker, the third accused was the licensee and the second accused was the salesman of toddy shop bearing Reg.No.TS.10 of Melila Panchayat Crl.A.408 and 550/2008 : 2 : at Chethadi. On 4.8.1998 at about 8 p.m., the accused Nos.1 and 2 in furtherance of the common intention of all the accused, possessed and engaged in the sale of nine litres of arrack, in contravention of the provisions of the Abkari Act. 3. Since there is no representation for the appellant in Crl. Appeal No.550 of 2008, this court appointed Adv.Sri. Manu Thampi as Amicus Curiae to argue the case for the appellant in Crl. Appeal No.550 of 2008. 4. Heard the learned Amicus Curiae, the learned counsel for the appellant in Crl. Appeal No.408 of 2008 and the learned Public Prosecutor. 5. The learned counsel for the appellant and the learned Amicus Curiae have submitted that since there is Crl.A.408 and 550/2008 : 3 : no evidence to prove the drawing of the sample from the contraband and sending the same to the laboratory in a tamper-proof condition, the appellants are entitled to benefit of doubt. It has been further argued that since there was inordinate delay in producing the contraband and the sample before the court, the appellants are entitled to benefit of doubt on that reason as well. 6. In this case, Ext.P7 Property List would show that the contraband as such was seized, sealed and produced before the court. The evidence of PW2 and PW1 would also show that the contraband as such was seized and produced before the court. PW4 was the thondi clerk who stated that the sample was taken from the contraband after the production of the contraband before the court. Crl.A.408 and 550/2008 : 4 : However, PW4 stated that he had no direct knowledge regarding the drawing of the sample from the contraband and sending the same to the laboratory. PW4 was not the person who had drawn the sample from the contraband. It is also to be noted that Ext.P10 Forwarding Note does not contain the sample of the seal at the space provided for the same. 7. In Prakasan v. State of Kerala [2016(1) KLD ## 311], the court held thus:- “Further in the absence specimen seal impression of the seal used for sealing the article having been produced in Court and in the absence of producing and marking the forwarding note which is expected to contain the specimen seal impression of the seal used for sealing the sample for the purpose of enabling the chemical examiner to verify and satisfy regarding the Crl.A.408 and 550/2008 : 5 : genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles were produced in Court in the same condition in which it was seized and it reached the chemical examiner's lab in a tamper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of contraband article alleged to have been seized from the possession of the accused. If this was not proved to the satisfaction of the Court, then it cannot be said that the prosecution had succeeded in bringing home the complexity of the accused in the commission of the crime and that benefit must be given to the accused.” ## 8. In Sasidharan v. State of Kerala [2007(1)KLT 720], ## the court held thus:- “Without the link evidence of actual sampling by the concerned clerk of the court by drawing sample from the can and sending the same in a sealed packet to the Crl.A.408 and 550/2008 **==> picture [29 x 13] intentionally omitted <==** Chemical Examiner with a specimen seal sent separately for tamper proof despatch, the Prosecution cannot be held to have brought home the offence against the appellant.” 9. The Division Bench of this Court in Ravi v. State of Kerala [2011(3) KLT 353] held that the prosecution in a case under the Abkari Act could 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. 10. In this case, the forwarding note does not contain the specimen of the seal at the space provided for the same. The thondi clerk who had actually drawn the sample from Crl.A.408 and 550/2008 : 7 : the contraband was not examined to prove the drawing of the sample from the contraband and sending the same to the laboratory in a tamper-proof condition. Therefore, the prosecution could not establish the drawing of the sample from the contraband and the tamper-proof despatch of the sample to the laboratory. In the said circumstances, there is no link evidence to show that it was the same sample drawn from the contraband seized from the appellant which eventually reached the hands of the chemical examiner in a tamper-proof condition. Therefore, there is no link evidence to prove that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the Crl.A.408 and 550/2008 : 8 : appellant is entitled to benefit of doubt. 11. Ext.P7 property list would show that the contraband was produced before the court only on 7.8.1998. No explanation had been given by the prosecution as to why there was delay in producing the contraband before the court. The delay as such, is not always fatal to the prosecution case. However, if there is unexplained delay, the same is no doubt, fatal to the prosecution case. Since there was unexplained delay in this case in producing the contraband before the court, there cannot be any guarantee that the contraband produced before the court was the contraband seized from the appellant,and in the said circumstances also, the appellants are entitled to benefit of doubt. Crl.A.408 and 550/2008 : 9 : In the result, these appeals stand allowed, setting aside the conviction and sentence passed by the court below under Sections 55(a),(i) and 57(a) of the Abkari Act and the appellants are acquitted for the said offences. The bail bonds of the appellants stand discharged. Sd/- **B.SUDHEENDRA KUMAR, JUDGE** _dl/.16.2.2017_ _// True Copy //_ _PA to Judge_