Anil Kumar, s/o Bhaskarangan Pillai vs. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI** **MONDAY, THE 22ND DAY OF JUNE 2020 / 1ST ASHADHA, 1942** **Crl.Rev.Pet.No.2291 OF 2007** **AGAINST THE ORDER IN CRA 26/2005 DATED 11-04-2007 OF SESSIONS COURT,KOLLAM WHICH IS AGAINST THE JUDGMENT IN SC 10/2000 OF ASSISTANT SESSIONS JUDGE, KOTTARAKKARA** ## **REVISION PETITIONER/APPELLANT/1ST ACCUSED:** **ANILKUMAR, S/O.BHASKARAN PILLAI, KANATHACKAL VEEDU, NELLIKUNNAM, UMMANNOOR,, KOTTARAKARA.** **BY ADVS. SRI.ALEXANDER GEORGE SRI.DILIP MOHAN** ## **RESPONDENT/COMPLAINANT/STATE:** - **1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** - **2 THE SUB INSPECTOR OF POLICE KOTTARAKARA POLICE STATION,, KOTTARAKARA.** ## **SRI SANTHOSH PETER-SR PP** **THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 15.06.2020, THE COURT ON 22.06.2020 PASSED THE FOLLOWING:** Crl.R.P.No.2291/2007 2 **“CR”** ## **R.NARAYANA PISHARADI, J** ************************ Crl.R.P.No.2291 of 2007 -------------------------------------------Dated this the 22[nd] day of June, 2020 ## **O R D E R** In the wee hours of the morning on 04.10.1998, at the place Odanavattam, the Inspector of Police, Kottarakara seized 1435 litres of spirit, which was being transported in the lorry KL-02/E-7176. The spirit was kept in 41 cans. The driver of the lorry and two other persons who were travelling in it escaped from the spot. The police party could not obstruct the car which was escorting the lorry and apprehend the persons who were in the car. The police party apprehended the petitioner who had got down from the cabin of the lorry. 2. The driver of the lorry and three other persons, who were allegedly travelling in the lorry and the car, were subsequently arrested. Along with them, the petitioner figured as the first Crl.R.P.No.2291/2007 3 accused in the case S.C.No.10/2000 and he faced trial for the offences punishable under Sections 55(a) and 55(i) of the Abkari Act, 1077 before the Assistant Sessions Judge, Kottarakkara. 3. The prosecution examined PW1 to PW7 and marked Ext.P1 to P10 documents. No evidence was adduced by the accused. 4. Learned Assistant Sessions Judge found the petitioner only, the first accused in the case, guilty of the offence punishable under Section 55(a) of the Abkari Act only and convicted him thereunder and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.1,00,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of one year. 5. The petitioner filed Crl.A.No.26/2005 before the Court of Session, Kollam challenging the order of conviction and sentence passed against him by the trial court. The appellate court confirmed the conviction as well as the sentence against the petitioner and dismissed the appeal. Crl.R.P.No.2291/2007 4 6. Concurrent verdicts of guilty, conviction and sentence made against him by the courts below are assailed in revision by the first accused. 7. Heard learned counsel for the petitioner and the learned Public Prosecutor. Perused the records. 8. PW1 is the Inspector of Police who detected the offence. He has given evidence regarding the occurrence in detail. PW2 was the driver of the police jeep and PW3 and PW4 were the police constables in the police party led by PW1. Their evidence more or less corroborates the testimony of PW1 with regard to the material particulars of the occurrence. As usual, PW5 and PW6, the independent witnesses examined by the prosecution did not support the prosecution case. 9. Ext.P9 is the chemical examination report received in respect of the samples which were sent for analysis. It shows that the 41 samples of liquid which were sent for analysis contained ethyl alcohol and the samples were rectified spirit. 10. Learned counsel for the petitioner pointed out that there was inordinate delay in producing the samples before the court Crl.R.P.No.2291/2007 5 and that the reason for the delay has not been explained by the detecting officer or the investigating officer. Learned counsel has contended that the unexplained delay in producing the samples before the court creates reasonable doubt as to the veracity of the prosecution case and the evidentiary value of Ext.P9 chemical analysis report. 11. The 41 cans containing spirit, allegedly seized from the lorry, were never produced before the court. They were initially kept in the police station. Subsequently, Ext.P8 order was passed by the learned Magistrate for producing the cans containing the spirit before the Assistant Excise Commissioner, Kollam. There is no evidence to find that the investigating officer had complied with Ext.P8 order. 12. The occurrence was in the early hours of the morning on 04.10.1998. The evidence of PW1 and the recitals in Ext.P1 seizure mahazar would show that PW1 had taken samples of liquid from all the 41 cans and sealed the sample bottles at the spot of the occurrence. PW7 Sub Inspector, who conducted the investigation of the case, has given evidence that the samples Crl.R.P.No.2291/2007 6 were produced in the court on 01.02.1999. He has testified that there was no specific reason for the inordinate delay of nearly four months in producing the samples in the court. 13. Decisions are umpteen which hold that inordinate and unexplained delay in producing the samples of the contraband substance before the court creates suspicion that the samples have been tampered with. Possibility of tampering or meddling with the samples cannot be ruled out in such cases. 14. A Division Bench of this Court, in **Ravi v. State of Kerala : 2011(3) KHC 121 : 2011(3) KLT 353** , has held that law does not mandate production of seized articles forthwith before the court and it enjoins only reporting the seizure forthwith to the court. But, it has also been held that production of the property before the court shall take place without unnecessary delay and if there is delay, it shall be satisfactorily explained. 15. When there is delay in producing the 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 Crl.R.P.No.2291/2007 7 adduce evidence to show as to how and in what conditions the samples were preserved at the police station (See **State of Uttar Pradesh v. Hansraj @ Hansu : (2018) 18 SCC 355** ). 16. In the instant case, there is no evidence adduced by the prosecution to show as to how and in what conditions the samples were kept at the police station during the period of nearly four months till they were produced in the court. 17. In **Hanif Khan @ Annu Khan v. Central Bureau of Narcotics : 2019 SCC OnLine SC 1810** , the Supreme Court has observed as follows: _“The delay in the production of the seized sample coupled with the signature on the seal being illegible, to our mind creates a serious doubt with regard to the prosecution case. There is no credible evidence that the FSL sample produced related to the very same contraband stated to have been seized from the appellant. PW-6 in his cross-examination, did not offer any reasonable explanation why the sample seized from the appellant and deposited in the Malkhana could not be produced in the Court except after a long gap of one year. His explanation that he had several_ Crl.R.P.No.2291/2007 8 _important works can hardly be considered sufficient, if not, any justification for the same. …........... There can hardly be any difference between a case of non-production of a sample and the production of a sample doubtful in its identity in being co-related to what was seized from the accused. In both the cases, it will become doubtful if the FSL report is with regard to the very sample seized from an accused.”_ 18. In cases under the Abkari Act, it is a usual and casual explanation very often offered by the detecting officer or the investigating officer that the delay in producing the seized articles occurred due to “pressure of work”. The decision in **Hanif Khan** (supra) indicates that such explanation can hardly be considered as sufficient, if not, any justification for the delay. Enthusiasm shown in the detection of crimes shall also be shown in taking proper steps for the successful prosecution of the offenders. 19. The list of properties, which should have been prepared by the detecting officer or the investigating officer for production of the material objects before the court, was not tendered in evidence. PW7 has given evidence that he had submitted the Crl.R.P.No.2291/2007 9 requisition for sending the samples for chemical analysis. The copy of the requisition or the forwarding note for sending the samples for chemical analysis was also not tendered in evidence and marked. The evidence of PW1 is silent as to the nature of the seal used by him for sealing the sample bottles. Ext.P1 seizure mahazar is also silent in that regard. 20. The forwarding note is expected to contain the specimen impression of the seal used for sealing the bottles containing the sample. Absence of the copy of the forwarding note in evidence means that there is no link evidence to establish that the very same samples, allegedly drawn at the spot of the occurrence from the liquid contained in the cans seized from the lorry, had reached the laboratory in a tamper proof condition and tested or analysed there (See **Prakasan v. State of Kerala : 2016 (1) KLD 311, Gopalan v. State of Kerala :2016 (2) KLD 469** and **Gireesh @ Manoj v. State of Kerala : 2019 (2) KLD 586: 2019 (4) KLT 79** ). There is no assurance that Ext.P9 chemical analysis report relates to the very same samples allegedly drawn by PW1 at the spot of the occurrence from the Crl.R.P.No.2291/2007 10 liquid contained in the cans. 21. The mere production of a laboratory report that the sample tested was contraband substance cannot be conclusive proof by itself. The sample seized and that tested have to be corelated (See **Vijay Pandey v. State of Uttar Pradesh : AIR 2019 SC 3569).** 22. Section 64 of the Abkari Act provides that, in prosecutions under Section 55 of the Abkari Act, it shall be presumed until the contrary is proved, that the accused person has committed an offence under that section in respect of any liquor, of the possession of which he is unable to account satisfactorily. When such reverse burden of proof is there, the prosecution shall be put to a stricter test and if at any stage, the accused is able to create a reasonable doubt, as part of his defence, to rebut the presumption of guilt, the benefit will naturally go to him. 23. The aforesaid vital aspects have not been taken into consideration by the courts below while appreciating the prosecution evidence. In such circumstances, the petitioner is Crl.R.P.No.2291/2007 11 entitled to be acquitted. 24. Consequently, the revision petition is allowed. The order of conviction and sentence passed against the petitioner/accused by the trial court under Section 55(a) of the Abkari Act, which stands affirmed by the appellate court, is set aside. The petitioner/accused is found not guilty of the aforesaid offence and he is acquitted. The bail bond executed by him is cancelled and he is set at liberty. Fine amount, if any, remitted by him shall be refunded to him. (sd/-) ## **R.NARAYANA PISHARADI, JUDGE** jsr **True Copy** **PS to Judge**