Appukuttan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE K. BABU** **WEDNESDAY, THE 13[TH] DAY OF MARCH 2024 / 23RD PHALGUNA, 1945** **CRL.A NO. 1096 OF 2009** **AGAINST THE JUDGMENT DATED 15.06.2009 IN SC NO.690 OF 2006 OF** **ADDITIONAL SESSIONS COURT, FAST TRACK NO.II ADHOC II, THRISSUR APPELLANT/ACCUSED:** **APPUKUTTAN, S/O AYYAN, PUTHENVEETTIL, PANJAPPILLY DESOM, KALLETTUMKARA VILLAGE, MUKUNDAPURAM TALUK. BY ADVS. SRI.P.VIJAYABHANU SRI.M.REVIKRISHNAN** ## **RESPONDENT/COMPLAINANT:** **STATE OF KERALA, PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM.** **BY ADV SRI.G.SUDHEER, PUBLIC PROSECUTOR** **THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON** **13.03.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Crl.A No.1096 of 2009 2 ## K.BABU, J. -------------------------------------- ## Criminal Appeal No.1096 of 2009 --------------------------------------Dated this the 13[th] day of March, 2024 ## JUDGMENT Aggrieved by the judgment dated 15.06.2009, passed by the Additional Sessions Court, Fast Track No.II (Adhoc), Thrissur in S.C.No.690/2006, the appellant/accused has preferred this appeal. The appellant was convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of four years and pay a fine of Rs.1 Lakh. 2. The prosecution case is that on 09.07.2004 at 13.30 hrs, the accused was found in possession of 7 litres of arrack at Panjappilly in Kallettumkara village in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence punishable under Section 8(2) of the Abkari Act before the jurisdictional Magistrate. The case was committed to the Sessions Court, from where it was made over to the Trial Court. On the appearance of the accused, Crl.A No.1096 of 2009 3 charge was framed against him for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge, and therefore, he came to be tried by the Trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 3 and proved Exts.P1 to P13 and MOs 1 and 2. 5. After the closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. He pleaded innocence. The Trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence he was called upon to enter on his defence and adduce evidence, if any, he may have in support thereof. After hearing the arguments addressed on both sides, the Trial Court convicted the appellant/accused for the aforesaid offence. 6. Heard the learned counsel appearing for the appellant/accused and the learned Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellant challenges the judgment of conviction and sentence on the ground that the Crl.A No.1096 of 2009 4 prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory. 8. The learned counsel for the appellant relied on the following circumstances to substantiate his contentions: - (i) The delay in the production of the properties, including the sample, has not been satisfactorily explained by the prosecution. - (ii) Exhibit P3 seizure mahazar does not contain the nature and description of the seal stated to have been affixed on the - bottle containing the sample. - (iii) The various officials who handled the sample during its transit from the Court to - the laboratory were not examined by the prosecution. 9. The alleged seizure was effected on 09.07.2004. Exhibit P5 list of properties would show that the sample reached the Court 5 Crl.A No.1096 of 2009 only on 12.07.2004. The prosecution has not offered any satisfactory explanation for the delay in the production of the properties, including the sample, before the Court. In Ravi v. State of Kerala [2011 (3) KLT 353] , on the question of delay in the production of 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 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) In Ravis' case (supra) the Division Bench held that production of the property before the Court should take place without unnecessary delay and that there should be an explanation for the delay when there is delayed production of the property. 10. There is no satisfactory explanation for the delay in the production of properties before the Court. The unexplained delay in the production of properties would lead to the conclusion that tampering with the sample could not be ruled out. Crl.A No.1096 of 2009 6 11. The detecting officer had prepared Ext.P3 seizure mahazar at the scene of occurrence. Exhibit P3 does not contain the nature and description of the seal stated to have been affixed on the bottle containing the sample. The detecting officer has not given evidence as to the nature of the seal used. There is nothing to show that the specimen of the seal was produced before the Court along with the sample. 12. In Bhaskaran K. v. State of Kerala and another (2020 KHC 5296) , this Court held that the nature of the seal used by the detecting officer shall be mentioned in the seizure mahazar and the specimen of the seal shall be produced in the Court so as to enable the Court to satisfy the genuineness of the sample produced in the Court. 13. The sample remained in the custody of the property clerk till 05.11.2004. The sample was delivered in the laboratory through an Excise Guard by name A.Varghese Vaidian. The property clerk and the Excise Guard, who delivered the sample in the laboratory were not examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Non-examination of Crl.A No.1096 of 2009 7 those officials is fatal to the prosecution. This view is fortified by the decision of the Apex Court in State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314]. 14. Since the prosecution failed to establish that the contraband substance allegedly seized from the place of occurrence eventually reached the Chemical Examiner's Laboratory, Ext.P11 Certificate of Chemical Analysis has no evidentiary value. 15. 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. 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 which was drawn from the contraband substance said to have been seized from the possession of the accused {Vide: State of Rajasthan v. Daulat Ram [AIR 1980 SC 1314], Sasidharan v. State of Kerala Crl.A No.1096 of 2009 8 ## [2007 (1) KHC 275] }. 17. In the instant case, the prosecution was unable to establish the link connecting the accused with the contraband seized and the sample analysed in the laboratory. The accused is entitled to the benefit of doubt arising from the absence of link evidence as discussed above. 18. The upshot of the above discussion is that the conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot, therefore, be sustained. In the result, the accused is acquitted of the offence alleged. He is set at liberty. The Criminal Appeal is allowed as above. Sd/K.BABU, JUDGE KAS