Ashokan v. State of Kerala

# IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE B.SUDHEENDRA KUMAR MONDAY, THE 9TH DAY OF JANUARY 2017/19TH POUSHA, 1938 CRL.A.No. 2061 of 2004 (C) --------------------------AGAINST THE JUDGMENT IN SC 447/2002 of ADDITIONAL SESSIONS COURT (ADHOC)-II, KOLLAM DATED 13-10-2004 APPELLANT(S)/ACCUSED:: --------------------- ASHOKAN, S/O. GOPALAN, KOOTTUNGAL THARAYIL, KADATHOOR MURI, THAZHAVA VILLAGE,, KARUNAGAPPALLY. BY ADVS.SRI.C.AJITH KUMAR (KALLESSERIL) SRI.C.ANILKUMAR (KALLESSERIL) RESPONDENT(S)/COMPLAINANT:: --------------------------- THE STATE OF KERALA, (REP. BY EXCISE INSPECTOR, KARUNAGAPPALLY IN CRIME NO.24/98, OF EXCISE RANGE, KARUNAGAPPALLY) REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. PUBLIC PROSECUTOR SRI. C.K. PRASAD THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 09-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## B. SUDHEENDRA KUMAR, J. ..................................................... Crl.A. No. 2061 of 2004 ..................................................... ## Dated this the 9[th] day of January, 2017 ## Judgment The appellant is the accused in S.C. No. 447 of 2002 on the files of the Additional Sessions Court, Kollam. The appellant was convicted by the court below under Section 8(2) of the Abkari Act and sentenced thereunder to rigorous imprisonment for three years and a fine of Rs. 1,00,000/- with a default clause for rigorous imprisonment for one year. 2. The prosecution allegation is that on 6-3-1998 at 12 noon, the appellant was found in possession of 2.5 litres of illicit arrack in contravention of the provisions of the Abkari Act. The appellant was arrested from the spot. 3. Before the trial Court, PW1 to PW6 were examined and Exts. P1 to P6 were marked for the -: 2 :- Crl.A. No. 2061 of 2004 prosecution besides identifying MO1. Ext. D1 was marked for the appellant. ## 4. Heard. 5. The learned counsel for the appellant has argued that eventhough the incident in this case was on 6-3-1998, the contraband articles and the samples were produced before the Court only on 9-3-1998, and in the said circumstances, the appellant is entitled to benefit of doubt. 6. In Prakasan and Another v. State of Kerala [2016 (1) KLD 31, the Court held thus: “Further in the absence of 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 genuineness of the sample produced for examination, it cannot be said that the prosecution has proved beyond reasonable doubt that the articles Crl.A. No. 2061 of 2004 -: 3 :- were produced in court in the same condition in which it was seized and it reached the chemical examiner's lab in a temper proof condition and the chemical analysis report relates to the representative sample said to have been taken from the large quantity of the 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.” In Sasidharan v. State of Kerala [2007 (1) KLT 720], the Court observed 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 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.” In **Ravi v. State of Kerala [2011 (3) KLT 353** ] **t** he -: 4 :- Crl.A. No. 2061 of 2004 Division Bench of this Court 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. 7. It appears from the records that the appellant was arrested from the spot. He was produced before the court on 6-3-1998. Ext. P3 is the property list which would show that the contraband articles were received in the Court only on 9-3-1998. PW6 produced the contraband articles before the Court. PW6 could not explain as to why there was delay in producing the articles before the Court. There is also no evidence with regard to the safe custody of the articles till their production before the Court. 6. It is also to be noted that there is absolutely no evidence before the Court with regard to the drawing of the -: 5 :- Crl.A. No. 2061 of 2004 sample from the contraband. PW4 seized the contraband from the spot and sealed the same. Thereafter, he handed over the contraband articles to PW6 who in turn produced the same before the Court. PW5 was the Investigating Officer who filed the final report before the Court after completing the investigation. PW5 stated that he was not aware as to when the sample was taken from the contraband. It is clear from Ext. P3 coupled with the evidence of PW4 and PW6 that no sample was taken from the contraband till the production of the same before the Court. Then who had taken the sample from the contraband ? There is no evidence regarding the same. There is also no evidence as to whether the sample was taken from the Court or from the Excise Office. The contraband was ordered to be kept in safe custody in the Excise Office as per order dated 18-3-1998 of the learned Magistrate. Ext. P4 Chemical Examination report would show that one bottle containing 150 ml. sample was received in the laboratory. Therefore, it is clear that sample -: 6 :- Crl.A. No. 2061 of 2004 was drawn from the contraband before sending the same to the Laboratory. However, the person, who had drawn the sample from the contraband, was not examined before the Court to prove the drawing of the sample and the tamper-proof despatch of the sample to the laboratory. Thus, the prosecution could not prove the drawing of the sample and sending the same to the Laboratory, for analysis in a tamper-proof manner. It is also to be noted that no forwarding note was also marked before the Court. No forwarding note is also available with the records transmitted to this Court. In view of the above reasons, there cannot be any guarantee that the sample analysed in the laboratory was the sample drawn from the contraband seized from the appellant and in the said circumstances, the conviction and sentence passed by the court below cannot be sustained and consequently, I set aside the same. -: 7 :- Crl.A. No. 2061 of 2004 In the result, this appeal stands allowed, setting aside the conviction and sentence passed by the court below under Section 8(2) of the Abkari Act and the appellant is acquitted for the said offence. The bail bond of the appellant stands cancelled and the appellant is set at liberty. Sd/-B. SUDHEENDRA KUMAR, JUDGE. Ani/ /true copy/ P.S. to Judge