Antony @ Anthony S/o Thomas v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **FRIDAY, THE 2[ND] DAY OF JULY 2021 / 11TH ASHADHA, 1943** **CRL.A.NO.1625 OF 2006** **AGAINST THE JUDGMENT IN S.C.NO.267/2004 OF ADDITIONAL SESSIONS COURT (ADHOC)-II, THODUPUZHA** ## **APPELLANT/ACCUSED:** **ANTONY @ ANTHONY S/O.THOMAS, KOTTAKUPURATHU HOUSE, THANNIPPARA KARA, KARUNAPURAM VILLAGE. BY ADV SRI.SOORAJ ELANJICKAL** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA THROUGH SUB INSPECTOR OF POLICE, CUMBUMETTU, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA.** **SRI.M.S.BREEZ (SR.PUBLIC PROSECUTOR)** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 02.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Crl.A.No.1625/2006 ## _**JUDGMENT**_ _Dated this the 2[nd] day of July, 2021_ Aggrieved by the judgment dated 21.7.2006, passed by the Additional Sessions Judge (Adhoc)-II, Thodupuzha, in Sessions Case No.267 of 2004, the accused has preferred this appeal. The trial court convicted the accused for the offence punishable under Section 8(2) of the Abkari Act. 2. The prosecution case is that on 30.3.2002, at 5 P.M., the accused was found carrying 35 litres of arrack through Santhipuram-Thannippara road. The offence was detected by PW3, Sub Inspector of Police, Cumbummettu. The Sub Inspector of Police seized the contraband articles from the accused. After completion of investigation, final report was submitted against the accused before the Judicial First Class Magistrate Court, Nedumkandam. The case was committed to the Sessions Court, Thodupuzha. On appearance of the accused, charges were framed against the accused for the offences punishable under Sections 55(a) and 8(2) of the Abkari Act. The accused pleaded not guilty and therefore, he came to 3 Crl.A.No.1625/2006 be tried by the trial court for the aforesaid offences. 3. The prosecution examined PW1 to PW3 and proved Exhibits P1 to P7 and MOs1 to MO3. 4. After closure of the evidence on behalf of the prosecution, the statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded total innocence. The trial court heard the matter under Section 232 Cr.P.C. and found that there is evidence against the accused and hence he was called upon to enter on his defence and to adduce evidence, if any, that he may have in support thereof. The trial court, after hearing the arguments addressed from both sides, convicted the accused and sentenced him to undergo rigorous imprisonment for a term of two years and to pay a fine of Rs.1,00,000/-. 5. Heard the learned counsel for the appellant and the learned public prosecutor. 6. The learned counsel for the appellant canvassed the following grounds to challenge the judgment of conviction and sentence passed by the court below. (i) The inordinate delay in the production of the properties 4 Crl.A.No.1625/2006 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 has ultimately reached the hands of the Public Analyst. 7. The only point that arises for consideration is whether the conviction entered and the sentence passed against the accused are sustainable or not. ## The Point : 8. PW3, the Sub Inspector of Police, Cumbummettu detected the offence. PW3 has given evidence that on 30.3.2002 while he was returning to the police station after effecting seizure of 10 litres of arrack from the possession of one Palathara Job, the accused was found carrying a 35 litre can through Santhipuram - Thannippara road. PW3 stated that on seeing the police party, the accused ran away from the place of occurrence. According to PW3, he could identify the man who ran away from the scene as he had previous acquaintance with him. PW1 seized the can left at the scene by the accused 5 Crl.A.No.1625/2006 and prepared Exhibit P1 mahazar. He collected sample from the can in two 375 ml. bottles. 9. PW2, a police constable attached to Cumbummettu Police Station, gave evidence in support of the version of PW3. PW1, the independent witness, did not support the prosecution case. PW3 conducted investigation and submitted final report. 10. The learned counsel for the appellant submitted that the properties allegedly seized from the scene of occurrence on 30.3.2002 reached the court only on 9.5.2002 and there is no satisfactory explanation for the delay caused in the production of the properties before the court. The explanation given by PW3 is that as the Government employees were on strike, the properties could not be produced before the court. 11. I am unable to accept the explanation given by PW3 as satisfactory. The materials placed before the court do not reveal that at any point of time from 30.3.2002 to 9.5.2002, PW3 made any attempt to produce properties before the court. A Division Bench of this Court in _**Ravi v. State of Kerala and another** [2011 (3) KHC 121]_ had considered the question of 6 Crl.A.No.1625/2006 ## delayed production of the properties and held as follows : _“8.(1) It is not necessary to produce the article seized under Section 34 of the Abkari Act before the Magistrate 'forthwith' either by virtue of Section 102(3) Cr.P.C. 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.”_ In _Ravi v. State of Kerala_ (supra), the Division Bench held that production of the property before the court should take place without unnecessary delay and there should be explanation for the delay when there is delayed production of the property. If the explanation for the delayed production of the property is not satisfactory before the court, it would lead to the conclusion that tampering with the sample could not be ruled out. 12. The learned counsel for the appellant further submitted that non production of the copy of the forwarding note, which contains the specimen impression of the seal affixed on the bottle containing the sample, before the court would lead to the concluson that the prosecution failed to establish the link connecting the appellant with the contraband substance. In the instant case, there is no evidence before the court that 7 Crl.A.No.1625/2006 forwarding note was prepared and produced before the court by the detecting officer. While dealing with a similar situation, this Court in _**Gopalan v. State of Kerala** [2016 KHC 541]_ held as follows : _“6. In this case, no forwarding note was marked before the Court. No forwarding note is also available before the Court. There is also no evidence before the Court that any forwarding note was prepared and produced before the Court by the Excise Officials. Since no forwarding note is available before the Court, the prosecution could not establish the link evidence connecting the revision petitioner with the contraband seized and the sample analysed in the laboratory and in the said circumstances, the revision petitioner is entitled to benefit of doubt.”_ 13. There are no materials before the court to ascertain when the sample was sent to the Chemical Examiners’ laboratory. The prosecution also failed to give any evidence as to who received the sample from the court. Neither the property clerk nor the person who received the sample from the court to be delivered to the Chemical Examiner's laboratory was examined as witness. 14. This Court is in the dark as to the date on which the sample was produced before the court and the date on which the same was sent to the Chemical Examiner's laboratory. 8 Crl.A.No.1625/2006 There is no evidence as to who received the sample from the court for delivering the same to the laboratory. The lack of evidence as to whether a specimen seal was at any time produced before the court with intent to be provided to the Chemical Examiner is also a serious infirmity. 15. In order to establish these aspects the prosecution ought to have examined the person who received the sample from the court and the person who delivered the same to the laboratory. Absence of any link evidence on these aspects goes against the prosecution. 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 cannot be conclusive proof by itself and that the sample seized and that tested have to be co-related. 16. The prosecution can succeed only if it is established that the sample which changed several hands had ultimately reached the hands of the Chemical Examiner in a tamper proof condition and that it was the very same sample which was drawn from the contraband liquid allegedly seized from the 9 Crl.A.No.1625/2006 accused. (Vide : _**State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]_ , _**Sasidharan v. State of Kerala** [2007 (1) KHC 275]_ . 17. This Court comes to the conclusion that there is absolutely no link evidence to establish that the sample drawn from the can allegedly possessed by the accused reached the hands of the Chemical Analyst in tamper-proof condition. 18. Resultantly, the conviction recorded and the sentence passed by the court below overlooking the above vital aspects cannot be sustained. In the result, the accused is acquitted of the charge under Section 8(2) of the Abkari Act. He is set at liberty. The appeal is allowed as above. Sd/- **K.BABU, JUDGE** csl