Ashif S/o Abootty and Suresh So. Balan v. State of Kerala

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** # **`PRESENT`** ``` THE HONOURABLE MR.JUSTICE K. BABU ``` ``` WEDNESDAY, THE 26[TH] DAY OF OCTOBER 2022 / 4TH KARTHIKA, ``` ## **`1944`** ## **`CRL.A NO. 992 OF 2008`** ``` AGAINST THE ORDER/JUDGMENT IN SC 554/2006 OF ADDITIONAL DISTRICT COURT (ADHOC), THALASSERY ``` ## **`APPELLANT/:`** ``` 1ASHIF S/O ABOOTTY, DRIVER, VILAMAN AMSOM, KOOTTUPUZHA. 2SURESH SO. BALAN KANNOTH HOUSE, VILAMAN AMSOM, KOOTTUPUZHA. BY ADV SRI.C.P.PEETHAMBARAN ``` ## **`RESPONDENT/:`** ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. ``` ## **`OTHER PRESENT:`** ``` SMT. REKHA.S. SR.P.P ``` ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 26.10.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` CRL.A NO. 992 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** ## **JUDGMENT** Aggrieved by the judgment dated 03.05.2008, passed by the Additional Sessions Court, Adhoc -I, Thalassery in Sessions Case No.554 of 2006, accused Nos. 1 and 2 have preferred this appeal. The appellants/accused Nos. 1 and 2 were convicted under Section 8(2) of the Abkari Act and sentenced to undergo simple imprisonment for a term of six months and pay a fine of Rs.One Lakh. 2. The prosecution case is that on 06.01.2005 at 8.30 p.m., accused Nos. 1 and 2 were found in possession of 2000 packets each containing 100 ml arrack, in a jeep having registration No.KL-11/C-2589 at Valiyaparambukari in violation of the provisions of the Abkari Act. 3. After completing the investigation, final report was submitted against the accused for the offence ``` CRL.A NO. 992 OF 2008 ``` ..3.. 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 charge was framed against them for the offence punishable under Section 8(2) of the Abkari Act. The accused pleaded not guilty to the charge and therefore, they came to be tried by the trial Court for the aforesaid offence. 4. The prosecution examined PWs 1 to 4 and proved Exts. P1 to P8. 5. After the closure of the evidence on behalf of the prosecution, the statements of the accused under Section 313 Cr.P.C. were recorded. They pleaded innocence. The trial Court heard the matter under Section 232 Cr.P.C. and found evidence against the accused and hence they were called upon to enter on their defence and to adduce evidence, if any, they may have in support thereof. The trial Court, after hearing the arguments addressed on both sides, found the accused ``` CRL.A NO. 992 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** guilty of the offence under Section 8(2) of the Abkari Act and convicted them thereunder. 6. Heard Sri. C.P. Peethambaran, the learned counsel appearing for the appellants/accused and Smt. Rekha S., the learned Senior Public Prosecutor appearing for the respondent. 7. The learned counsel for the appellants challenges the judgment of conviction and sentence on the ground that the prosecution failed to establish that the contraband substance seized from the place of occurrence was subjected to analysis in the Chemical Examiner’s Laboratory. 8. The learned counsel relied on the following circumstances to substantiate his contentions:- (i) The inordinate delay in the production of the properties including the sample has not been satisfactorily explained by the prosecution. - (ii) Ext.P1 seizure mahazar does not contain the nature and description of the seal stated to ``` CRL.A NO. 992 OF 2008 ``` ..5.. have been affixed on the bottle containing the sample. (iii)The officials who handled the sample during its transit from the Court to the laboratory have not been examined by the prosecution to establish the tamper-proof despatch of the sample. 9. The alleged seizure was effected on 06.01.2005 by the Sub Inspector of Police, Karikkottakari Police Station. According to the prosecution, the contraband substances were seized at the place of occurrence from the possession of the accused. The Detecting Officer has prepared Ext.P1, seizure mahazar, a contemporaneous document, to evidence seizure and arrest. He had also collected samples in fourteen 375ml bottles to be sent for analysis as per Ext.P1 dated 06.01.2005. Ext.P3 shows that the 14 bottles containing the sample were produced before the Court only on 28.01.2005. There is no satisfactory explanation for the delay in the production of ``` CRL.A NO. 992 OF 2008 ``` ..6.. the properties including the sample before the Court. 10. In **Ravi v. State of Kerala** [2011 (3) KHC 121] on the question of delay in production of properties a Division Bench of this Court held thus: “8. We, therefore, answer the reference as follows: 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.” In **Ravi's 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 explanation for the delay when there is delayed production of the property. 11. 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 samples could ``` CRL.A NO. 992 OF 2008 ``` **==> picture [20 x 8] intentionally omitted <==** not be ruled out. 12. Ext.P1 seizure mahazar 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. The bottles containing the sample were received by the Junior Superintendent of the Court on 28.01.2005. The bottles remained in the Court till they were sent to the Chemical Examiner’s Laboratory. There is no evidence as to when the bottles containing the sample were forwarded to the Chemical Examiner’s Laboratory. Ext.P5 forwarding note shows that the same was prepared on 19.04.2005 by the Station House Officer and submitted before the Court on 27.04.2005. The date on which the bottles containing the sample were forwarded to the laboratory were also not evident from Ext.P8 Certificate of Chemical Analysis. Ext.P8 shows that the samples reached the laboratory on 29.06.2005 through a Police Constable No.4727. This Court finds ``` CRL.A NO. 992 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** that the bottles containing the sample remained in the custody of the Junior Superintendent of the Court, Property Clerk of the Court and the Police Constable who received the same from the Court and delivered the same to the laboratory. None of these officials were examined by the prosecution to rule out the possibility of the sample being changed or tampered with. Nonexamination of those officials who handled the sample during the course of its transit from the Court to the laboratory is fatal to the prosecution case. This view is fortified by the decision of the Apex Court in **State of Rajasthan v. Daulat Ram** [AIR (1980) SC 1314]. 13. As the prosecution failed to show that the contraband seized from the place of occurrence was actually examined in the laboratory, Ext.P8 Certificate of Chemical Analysis has no evidentiary value. The prosecution failed to establish the link connecting the accused with the contraband seized. 14. The upshot of the above discussion is that the ``` CRL.A NO. 992 OF 2008 ``` **==> picture [20 x 9] intentionally omitted <==** conviction and sentence entered by the Court below overlooking these vital aspects of the matter cannot therefore be sustained. The appellants/accused are therefore found not guilty of the offence punishable under Section 8(2) of the Abkari Act. In the result, - (i) The Appeal is allowed ; - (ii) The judgment of conviction and sentence passed against the accused is set aside ; - (iii) The accused are acquitted of the offence alleged; - (iv) They are set at liberty ; - (v) Any amount deposited by the accused as per the interim orders of this Court shall be disbursed to them as per law. Sd/- **K. BABU, JUDGE** kkj